Towle v. Seaman

• Decision Date: 11 July 1889
• Citation: 42 N.W. 1117,76 Mich. 251
• Court: Michigan Supreme Court
• Parties: TOWLE ET AL. v. SEAMAN ET AL.

42 N.W. 1117

76 Mich. 251

TOWLE ET AL. v. SEAMAN ET AL.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Montcalm county; VERNON H. SMITH, Judge.

Assumpsit, with notice. Defendants pleaded the general issue, with notice. On the trial an application was made for leave to file an affidavit denying on oath the execution of the notes in suit, which was denied, the court stating that the cause had been on the docket for two years and been noticed for trial many times, and that no showing was made to excuse the delay in making the application.

CHAMPLIN J.

The declaration contains the common counts in assumpsit. The suit was commenced by filing and serving declaration, to which was added a notice that on the trial of the cause the plaintiffs, under the money counts, would give in evidence four certain promissory notes, copies of which were given as follows: "$250. Greenville, Mich., May 27, 1884. Ninety days after date we promise to pay to Towle, Douglas & Co. or order two hundred and fifty dollars, at 1st National Bank value received. Due Aug. 28. SEAMAN, DUNHAM & CO." "$400. Greenville, Mich., June 20, 1884. Sixty days after date we promise to pay to Towle, Douglas & Co. or order four hundred dollars, at 4th National Bank, Grand Rapids value received. Due Aug. 22. SEAMAN, DUNHAM & CO." "$275. Greenville Mich., June 30, 1884. Sixty days after date we promise to pay to Towle, Douglas & Co. or order four hundred dollars, at 4th National Bank, Grand Rapids, value received. Due Sept. 1. SEAMAN, DUNHAM & CO." "$300. Greenville, Mich., July 31, 1884. Sixty days after date we promise to pay to the order of Towle, Douglas & Co. three hundred dollars, at 1st National Bank, Greenville, value received, with interest at - per cent. per annum. Due Oct. 2. SEAMAN, DUNHAM & CO."

The defendants William Dunham, Richard G. Peters, and Arthur Meigs pleaded the general issue, and gave notice thereunder, as follows: "To the above-named plaintiffs: Take notice that on the trial of the above-entitled cause these defendants, Dunham, Peters, and Meigs, will insist and prove, in their defense, that said notes, copies of which are attached to said declaration, if they were ever given at all by Seaman, Dunham & Co., were written and signed by Henry Seaman, while he was a member of said company, and used by said Henry Seaman in his own business, and not in any way for the business, use, or benefit of the firm of Seaman, Dunham & Co.; and that said plaintiffs, when they received said notes, knew that they were made by said Seaman in fraud of the other members of the partnership of Seaman, Dunham & Co., and without any lawful authority to so use said firm name; and also that these defendants never signed, or authorized the signing of, said notes, or either of them; and that said plaintiffs, when they received said notes, had notice thereof. Yours, etc., GODWIN & ADSIT, Attys. for Defts. Dunham, Peters, and Meigs."

A jury was impaneled for the trial of the cause on December 12 1888. The notes, of which copies had been served with the declaration, were offered in evidence; whereupon counsel for defendants Peters, Dunham, and Meigs objected, on the ground that the execution of the notes had not been proved. Counsel for said defendants also asked leave of court to file an affidavit of the said defendants, denying the execution of the notes by said defendants, or either of them, said affidavit to be in substantial compliance with the notice attached to their plea. The court, for reasons appearing satisfactory to him, denied said motion. Such reasons are set forth in the bill of exceptions, and we think his discretion was properly exercised in this respect. Plaintiff also introduced testimony tending to show that the plaintiffs were the only members of the firm of Towle, Douglas & Co., and there was not and never had been any other members of that firm, and that the notes were indorsed by that firm in the handwriting of one of the members of the firm. Counsel for plaintiff thereupon withdrew the note of date June 30, 1884, from the case, for what reason is not stated, and read the other notes in evidence. Counsel for defendants Dunham, Peters, and Meigs thereupon opened his case to the jury, and stated his proposed defense, viz.: That the firm of Seaman, Dunham & Co. was composed of Henry Seaman, and the defendants Dunham, Peters, and Meigs; that Seaman had the management of the business of the firm, and was authorized to sign the firm name to all notes, checks, and paper of the firm, in all transactions relating to its business; that the notes in question in this suit were given by Seaman in payment of indebtedness owing by said Seaman individually to the firm of Towle, Douglas & Co. Counsel then called Arthur Meigs, one of the defendants, and, an objection being made to his first acknowledgment of the paper, stated to the court what he proposed to prove as follows: That they proposed to introduce evidence on the part of the defendants tending to prove that these notes were not given for...