Watt v. Pomeroy

• Decision Date: 13 May 1870
• Citation: 20 Mich. 425
• Court: Michigan Supreme Court
• Parties: Orrin A. Watt v. Norman G. Pomeroy

20 Mich. 425

Orrin A. Watt v. Norman G. Pomeroy

Supreme Court of Michigan

May 13, 1870

Heard May 11, 1870

Error to Washtenaw Circuit.

This was an action of trover brought by Pomery in the Circuit Court for the County Washtenaw for the value of a pair of horses delivered by him to Wait, in exchange for a promissory note, of which the following is a copy: $ 200.00. Township of Sharon, Oct, 12, 1868.

One year after date, I promise to pay W. D. Munn or bearer, two hundred dollars, for value received, with ten per cent interest.

No 113. CONRAD HISELSCHWERDT.

The plaintiff offered evidence to show, that at the time of the trade, the defendant stated to the said plaintiff that the maker of the note "lived or had lived on the Rowe farm and that said note was good and the Dutchman all right," and that if at any time he was dissatisfied with said note, he might return the same, and defendant would trade back; and that the trade was made on those terms. The maker of the note was produced and sworn as a witness on the part of the plaintiff, and admitted that he signed the note, but that when the note was given, there was a clause below stating that if the machine was not delivered the note was not to be paid: the words were--"If the machine should not be delivered this note not to be paid." The witness stated further, "The machine was never delivered. I would not sign the note without those words. I never lived on the Rowe farm. I was not good last April,--I had no property then liable to execution."

The Court charged the jury as follows: If you should find that the defendant represented the note as all right, and if you should find that the note was originally given with a memorandum or writing at the bottom of the note, limiting or fixing the payment of the note upon condition that the machine or implement for which the note was given should be delivered before the note should become payable, and if this memorandum has been removed, and if the machine has not been delivered, then the note, even in the hands of a bona fide purchaser, would not be collectible as against the maker. And further, the cutting off a memorandum or writing at the bottom of a note, which, in some material point, affects the terms of the note, would render the note invalid in the hand of an innocent or bona fide holder of the note. To which the defendant excepted. The jury found for the plaintiff, and the judgment entered on the verdict, the defendant below brings into this Court by writ of error.

Judgment affirmed.

Joslin & Blodget, for plaintiff in error.

H. J. Beakes and R. E. Frazer, for defendant in error.

OPINION

Campbell, Ch. J.

The only question raised in this case is whether the destruction of a memorandum, written under a promissory note, and qualifying it, vitiates the note in the hands of a bona fide holder, having no knowledge of the alteration.

We think it quite clear upon the authorities that the note and memorandum constituted but one contract, and were in law a single instrument. There are some decisions which have held particular memoranda immaterial. But no case has been cited and we have found none which holds that, if material, it may be disregarded. The cases are fully collected in 2 Pars. Bills and Notes, 539 and seq. And while a memorandum on a separate paper is said by Mr. Parsons not to affect parties taking without notice, it is otherwise where all is in one instrument. To use the language of the Court of Queen's Bench, in Warrington v. Early, 2 Ellis and Bl.,...