Error to Clinton Circuit.

This was an action of assumpsit brought.to recover the amount due upon a promissory note.

The plea was the general issue with notice of set off and tender.

Upon the trial, plaintiffs gave in evidence a promissory note dated December 3, 1866, made by defendant for the sum of $400, payable six months after date at the First National Bank of St. Johns, to the order of J. W. Hooker, and indorsed by him; and thereupon rested.

Defendants then called Samuel S. Walker, who testified tlTat he was cashier of the First National Bank of St. Johns, at St. Johns, Michigan; that the plaintiffs, who were bankers doing business in Detroit, Mich., sent to said bank in tbe first part of 1867, each before it was due, for collection, five notes; one being the note in suit which was last sent to the bank. The said four notes all bore date December 3, I860, signed by defendants, and drawn to .the order of J. IV. Hooker, payable at the First National' Bank of St. Johns, and drawing seven per cent, interest, and ten per cent, after due; each for the sum of $300, and payable in two, three, four and five months from their date respectively: the two first falling due being unindórsed, and the two last falling due being indorsed “J. IV. Hooker.”

Said witness further testified that on March 23, 1867, defendants paid $200 on the note falling due February 4, 1867, which was indorsed on said note and sent to plaintiffs; that on April 24, 1867, defendants paid the note falling due in April, 1867, which was sent to plaintiffs; that on May 11, 1867, defendants paid $932.25, which was sent to plaintiffs, and on July 12, 1867, defendants offered to pay balance of note in suit if witness would apply $200 which was twice paid by mistake on the note falling duo in February, 1867; that witness declined to receive such balance and deliver up the note in suit, and defendants then tendered said balance and deposited it in said bank.

On cross-examination he testified that the money was paid on May 11th, 1867, by defendant Hale; that said Hale came into the bank and said, “ I guess I will take up those notes;” that witness then reckoned up the notes then in bank, making the amount due on the note falling due in February, 1867, $311.67; on note falling due in March, 1867, $311.08; on note falling due in May, 1867, $309.50. Hale paid the amount ($932.25 ) to witness, and witness delivered the notes to Hale and sent money to plaintiffs; and neither noticed the $200 indorsed on February note; that witness did not know of the mistake till Hale came into the bank and informed him on July 12, 1867, when Hale offered to pay the balance of the note in suit, less the $200, as stated in the direct examination: that the note in suit had not been received by the bank on May 11, 1867, but that it was in the possession of the bank on July 13, 1867.

…

Citation profile

How this case has been treated — in progress