Van Slyke v. Rooks

• Citation: 181 Mich. 88,147 N.W. 579
• Decision Date: 01 June 1914
• Docket Number: No. 235.,235.
• Parties: VAN SLYKE v. ROOKS et al.
• Court: Michigan Supreme Court

181 Mich. 88
147 N.W. 579

VAN SLYKE
v.
ROOKS et al.

No. 235.

Supreme Court of Michigan.

June 1, 1914.

Error to Circuit Court, Ottawa County; Orien S. Cross, Judge.

Action by Charles E. Van Slyke against W. J. Rooks and others. There was a judgment for defendants, and plaintiff brings error. Reversed, and new trial ordered.

Argued before McALVAY, C. J., and BROOKE, KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ.

[147 N.W. 580]

F. J. Northway, of Durand, and Odell Chapman, of Owosso, for appellant.

Diekema, Kollen & Ten Cate, of Holland (Jarrett N. Clark, of Zeeland, of counsel), for appellees.

STONE, J.

This is an action of assumpsit commenced in the circuit court for the county of Ottawa. The plaintiff filed a declaration upon the common counts in assumsit, and gave notice that, on the trial, he would, under the money counts, give in evidence a certain promissory note, a copy of which was attached to the declaration, and wich reads as follows:

600.00 Zeeland, Mich., Apr. 11, 1912.

On May 1, 1913, after date, for value received, I promise to pay Calkins & Augsbury, or order, six hundred dollars at the Zeeland State Bank, with interest at 6 per cent. per annum, interest payable annually.

W. J. Rooks.

M. P. Neenhuis.

John C. Webeke.

Gerrit Schut.

Egbert J. Boes.

Alfred Van Vorst.

Albert Bement.

John Van Stratt.

William Zonnebelt.

Arthur Wiggers.

Daniel D. Meeusen.

This note bore on its back the following blank indorsement: ‘Calkins & Augsbury.’

All of the defendants appeared and pleaded the general issue, under which they gave notice: (1) That the note, copy of which was attached to the declaration, was not the note of said defendants, and that, if the signatures of any of them were attached to said note, the same had been obtained by fraud, deceit, and misrepresentation, and that there was fraud in esse contractus, and therefore they were not liable thereon; (2) that said plaintiff was not a holder in due course, and that there was a total want or failure of consideration for said note, said defendants never having received consideration for said note; (3) that they were discharged from all liability on said instrument by reason of material alterations made thereon without the consent of all of the parties liable thereon; (4) that Albert Van Vorst, one of the said defendants, was an infant at the time the note was purported to have been given, April 11, 1912; (5) that Albert Bement, being one of the defendants whose name is purported to be attached to said note, never signed or executed the said note, as will more fully appear by affidavit denying said execution thereto attached. Accompanying the plea was the affidavit of Albert Bement denying the execution of the note, and denying that he ever authorized any one to sign his name to said note.

The case, being at issue, was noticed for trial by plaintiff's attorney for the August term of 1913, which notice also stated that it was plaintiff's intention that ‘an inquest will be taken thereon.’

The record shows that the case was set down for trial for September 4, 1913, at which time the parties appeared in court by their respective attorneys, and the plaintiff's counsel claimed the right to an inquest under circuit court rule 14; no affidavit of merits having been filed and served by defendants before the first day of the term. It was claimed by defendants' attorneys that they had noticed the case for trial five days before the notice of trial was given by the plaintiff, and that both parties had demanded a jury. Thereupon defendants' attorneys asked leave to file an affidavit of merits nuncpro

[147 N.W. 581]

tunc as of date before the first day of the term. This motion was granted by the circuit judge, and an affidavit of merits was accordingly filed nunc pro tunc, to which ruling of the court plaintiff's counsel duly excepted.

It appeared upon the trial that the plaintiff was the purchaser of the note, a copy of which has been given, and also another note of like date and amount, due May 1, 1914, bearing the same rate of interest, and purporting to be signed by all of the defendants, and indorsed by Calkins & Augsbury. These notes are known and referred to in the record as Exhibits A and B.

The plaintiff was sworn as a witness in his own behalf, and testified that he purchased both of said notes of the payees, Calkins & Augsbury, and gave therefor $1,000, which was evidenced by a check bearing date April 29, 1913, payable to Calkins & Augsbury, and which check appeared to have been duly paid by the bank upon which it was drawn on April 29, 1913.

The plaintiff gave testimony that he was a bona fide holder of these notes; that while he actually purchased them on the 29th day of April, 1913, for the sum of $1,000, that he had agreed to purchase the same from the payees some weeks prior thereto; that he was informed by the payees that the notes in question had been given to the payees upon the sale of a horse by them to the defendants. Without setting forth in full here the testimony in this record, a careful perusal of the same has satisfied us that the undisputed evidence in the case shows that the plaintiff was a bona fide purchaser of these notes before maturity for value, and that the trial court should have so charged the jury.

Upon the trial of the case each one of the defendants, except the defendant John C. Webeke, was examined as a witness. Their testimony tended to show that they had had...