McRobert v. Crane

¶1The plaintiff sued on the common counts describing all the defendants except Root as constituents of the firm of William Gregg & Co., and gave notice on the declaration that a note of the following tenor would be given in evidence : i

“ $1050. Mason, Mich., March 29, 1880. '

Four months after date I promise to pay to the order of E. E. Keeler ten hundred and fifty dollars at the First National Bank, Mason, Michigan,- for value received, with interest at ten per cent, after maturity. ;

William Gregg & Co.

Endorsed — N. A. Dunning, E. E. Keeler, W. W. Root. Paid $200, Aug. 2, ’80; paid $100, Sept., ’80; paid $50, Oct- 5, ’80; paid $150, Dec. 9, ’80; paid $50, Feb. 13, ’81: paid $50, March 31, ’81.”

¶2The defendants except Crane suffered default. He pleaded the general issue with notice of special matter of defense, and chiefly that the plaintiff obtained the note after its maturity and paid no consideration; that he, j Crane, neither signed, executed or delivered it, or authorized any one to do so, and that this was known to the plaint-jiff when he got it, and further that the payee gave no consideration and that none existed. The plea was accompanied by Crane’s affidavit that he did not sign nor execute the .sote nor authorize any person to sign or execute it in his *485name or behalf, and that it was not signed, executed or delivered by him, nor by any person by him authorized to1 sign, execute or deliver it.

¶3The cause was brought to trialj before a jury and the plaintiff read in evidence certain articles subscribed by the defendants except Root on February 21, 1878, to create a. partnership between them for ten years unless sooner dissolved by mutual consent, for the manufacture and sale of bent stone-boats, log-boats and such other bent material as should be decided on by the firm afterwards. It is unnecessary to quote the provisions. Following the submission of these articles the plaintiff produced the note, the payee of which, as seems to have been admitted, was one of the partners, and offered it in evidence.

¶4The defendant objected; and thereupon and without any ruling on the objection, the defendant by permission of the court and with the consent of the plaintiff, made and filed another affidavit under Circuit Court Rule 79. A copy of1 this affidavit appears below.* The plaintiff then re-offered *486tbe note, together with the endorsements appearing on it, and again the defendant objected, and explicitly stated his grounds.†

¶5The court overruled the objection and the note with its different endorsements was read to the jury. No other evidence was tendered and the court directed a verdict for the plaintiff.

¶6It will not escape notice that the pleadings informed the plaintiff that the defendant purposed to insist that he was not a party to the note and would put the plaintiff to his proof on that subject. The position of the defendant was therefore no surprise. It will be noticed also that there was no withdrawal or exclusion of the first affidavit and that the second was superadded with the plaintiff’s assent. Whether the first was not adequate it is now needless to consider, because we have no doubt of the sufficiency of the second under our former decisions. McCormick v. Bay City 23 Mich. 457; Anderson v. Walter 34 Mich. 113; Haight v. Arnold 48 Mich. 512. The practical effect was to remit the plaintiff to the same showing it would have been necessary for him to make in case the rule of court referred to had not existed. That no such showing was made is obvious.

¶7There was no testimony at all to connect the note with the firm or prove that it was executed and delivered by either of the members or by any person with their authority. Neither was there any evidence of a negotiation by endorse*487ment. The case presents no question in regard to the construction of the articles. In view of the lack of other evidence the agreement for a partnership is of no more present importance than blank paper.

¶8The judgment must be reversed with costs and a new trial 'granted.