Parsons v. Frost , 55 Mich. 230 ( 1884 )

Sherwood, J.

This is an action of assumpsit, brought by the holder and owner of a promissory note against the maker and indorser. The declaration is special against the indorser, and also contains the common counts. Defendant Noble alone appears and defends. Under the general issue he gave notice that he would show on the trial that the note was given to secure the antecedent debt of Frost alone, and upon no other consideration ; that he had not indorsed the note when it was given by Frost to the plaintiff, nor had he been requested to, and had no knowledge of the making or delivery of the note; that some time after the same had been delivered to the plaintiff, at his request, he, defendant, indorsed the note without consideration from any one, and that the note and indorsement were without consideration other than the pre-existing indebtedness of Frost to plaintiff; that there was no agreement with either of the parties that he, Noble, would indorse the note ; and that his admission of liability on the note, contained in the indorsement by him and Frost, was obtained at the request of the plaintiff and without any consideration to defendant Noble.

The cause was tried at the "Wayne circuit before a jury, and a verdict for plaintiff directed by the circuit judge.

The note and indorsements are as follows :

“$2000. Detroit, Mich., June 15, 1870.

Sixty days after date, I promise to pay to the order of Charles W. Noble two thousand dollars, at the First National Bank of Detroit.

Yalue received, with interest at the rate of ten per cent.

Geo. S. Frost.

(Indorsed) Charles W. Noble.”

Also indorsed on the back of the note is the following:

“ For value received, we admit our liability upon the within note, and hereby promise to pay the amount due thereon, principal and interest, on demand, less any payment which should be applied thereon.

Geo. S. Frost.

Charles W. Noble.

Dated August 11, 1816.”

It appears from the testimony undisputed that the defendants are brothers-in-law, and were partners in business when the note and indorsement and undertaking therein appearing were made; that on that day the plaintiff held the defendant Frost’s note, indorsed by the defendant Noble, due one day after date, and that said note was taken up, and the note sued on was given in its stead. The defendant Noble further says that he would not have indorsed the second note unless the plaintiff had canceled the other; that he and Frost signed their indorsement of liability and the undertaking therein contained at the request of plaintiff’s agent, to prevent the Statute of Limitations running against the note. This is the defendants’ testimony, and if it shows a consideration for Noble’s indorsement, then the verdict must stand; if not, the case should have been submitted to the jury.

When the plaintiff had introduced the note and indorsements in evidence, a prima facie case was made for recovery.

Did the evidence subsequently offered by the defendant ■defeat the plaintiff’s prima facie case ? We think it did not. The note was within a few days of being outlawed when the indorsements asked for by plaintiff’s agent were made. The plaintiff himself had previously complained to Noble of Frost’s neglect to pay, and the agent stood in the presence of Noble asking him to do that which was necessary to prevent suit. He proposed to defer payment or suit till plaintiff might return from Europe. The defendant then gave his indorsement, and it would be doing violence to reasonable intendment to say'that he did not do so upon the conditions and terms proposed, and the forbearance must be held a sufficient consideration for the indorsement.

There are other grounds upon which, perhaps, the liability of Noble might be safely rested, had the case gone to the jury, but we are not at liberty to consider them upon this record. The plaintiff can only rely upon the undisputed testimony. There seems to be no question but that Frost desired that Noble should sign the indorsement, and in making it Noble not only expressly admitted'his liability but promised to pay the note. He cannot now be heard to say he never made such promise.

The judgment must be affirmed.

The other Justices concurred.