Weaver v. Bromley

Decision Date15 February 1887
Citation65 Mich. 212,31 N.W. 839
CourtMichigan Supreme Court
PartiesWEAVER v. BROMLEY.

Error to Oceana.

James Brassington and William Tiffany, for plaintiff and appellant.

L.G. Rutherford, for defendant.

MORSE J.

The plaintiff sued the defendant in justice's court in assumpsit upon a promissory note as follows:

"$50. HESPERIA, MICHIGAN, April 28, 1885.
"Nine months after date I promise to pay to the order of Henry Bromley, or bearer, fifty dollars, at seven per cent interest. Value received.
"ALPHONZO C. GOWELL."

This note was indorsed on the back: "H. BROMLEY."

The defendant pleaded the general issue, and filed an affidavit alleging that the note had been altered since he indorsed it, and that he did not sign it as it then appeared. He also denied in said affidavit that he had ever received any notice of the dishonor, protest, or non-payment of the note since it matured. Upon an appeal to the circuit court for the county of Oceana, and a trial there had upon the issue joined in justice's court, before a jury, the verdict and judgment was in favor of the defendant.

The alteration claimed in the note was the insertion of the words "or bearer." The court correctly instructed the jury that such change, if made, was not a material alteration, and would not avoid the liability of the defendant upon the note.

Upon the trial the wife of the plaintiff testified that she was an equal copartner of her husband in the store kept by him, and that the note in suit was purchased with goods out of the store, and charged to partnership account, and no charge was made to her husband, the plaintiff, to his individual account of the goods exchanged for the note. The counsel for defendant then asked her this question: "Question. The note being bought with the goods out of the store in which you are a partner, don't you think you are a part owner in the note now? Answer. Taking that view of it, Mr. Rutherford, perhaps I may be. I am a partner in the store and goods." On redirect examination she testified that she never claimed any interest in the note,--did not claim any interest in it when suit was brought, and did not claim any interest in the note at the time she was testifying. Notwithstanding this disclaimer, the court submitted the question of the ownership of the note to the jury, and instructed them that, if they found it was owned by the copartnership, the plaintiff could not recover. This was clearly erroneous.

In regard to the dishonor of the note, and the proceedings taken to fasten the liability for its payment upon the defendant William Tiffany testified that he made a demand for payment upon Gowell, the maker, at his residence, on Saturday evening, January 30, 1886, at 7 o'clock P.M. On the same night, about 11 o'clock P.M., he...

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