Wright v. Traver

• Decision Date: 25 January 1889
• Citation: 41 N.W. 517,73 Mich. 493
• Court: Michigan Supreme Court
• Parties: WRIGHT v. TRAVER ET AL.

41 N.W. 517

73 Mich. 493

WRIGHT v. TRAVER ET AL.

Supreme Court of Michigan

January 25, 1889

Appeal from circuit court, Gratiot county; HENRY HART, Judge.

MORSE, J.

The plaintiff offered in evidence the following instrument "$100.00.

"ST. LOUIS, MICHIGAN, Feb'y 4, 1884.

"On or before the first day of February, 1885, for value received, the undersigned promise to pay A. J. Mowry, or order, at Harrington, Saviers & Co. bank, for machine, and for the right of Grant's Pat. Hoop Machine, one hundred dollars, with interest at six per cent. per annum from date until due, without relief from valuation or appraisement laws, and with ten per cent, att'y fees. The conditions of this note are, if not paid when due, the property for which it is given shall be the property of A. J. MOWRY.

E. W. TRAVER & CO.

On the back of said note are indorsed the following words: "Pay to the order of A. F. Wright without recourse. A. J MOWRY." The only question in the case is whether or not this is a promissory note. The court below ruled that it was, and admitted, it as such in evidence. In support of this ruling it is argued that it answers perfectly the requirements of a promissory note; that it is a written engagement to pay absolutely and unconditionally a certain sum of money at a certain time specified therein. It is contended that the clause as to the payment of attorney's fee does not alter its character as a note, because the amount of such fee is certain, and the payment unconditional.

It is claimed that the case is not covered by Bank v Purdy, 56 Mich. 6, 22 N.W. 93; Altman v Rittershofer, 36 N.W. 74; or Altman v. Fowler, 37 N.W. 708. In the first case the instrument contained an agreement to pay exchange and all expenses, "including attorney fees incurred in collecting." In the other two the agreement was to pay attorney fees, without naming any amount or per cent. In all three there was an agreement to pay, in addition to the amount of the so-called note, a sum not fixed and uncertain, for attorney fees. In the case at bar the attorney fee is to be a certain per cent. upon the amount due, and in terms to be paid when the note is due without any contingency. But there is a condition attached that, if the note is not paid when due, the property for which it is given shall be the property of the payee, A. J. Mowry, and the body of the instrument names the property for which it is given in payment. This appears to us to destroy its character as a promissory note, and reduces it to a mere contract. The strict reading of the instrument would import that, when it falls due, the maker is to pay the $100, with 6 per cent. interest, and also 10 per cent. as attorney fee, being in effect the same as 16 per cent. interest. The...