Carey v. Nissle

Grant, J.

{after stating the facts). 1. The court correctly instructed the jury upon the law of the case, stating the theory of each of the • parties. With those principles of law the profession is familiar. This case in many of its facts is similar to Fink v. Chambers, 95 Mich. 508, and is ruled by it. Of the allegations of error three only need discussion. Harris was a witness for the plaintiffs to prove the execution of the notes and the assignment by him and Stimmel to the plaintiffs. On cross-examination he was asked whether he had not stated to certain parties that he still owned the notes; that he had deposited them in the bank as collateral and had obtained money upon them. He denied making such statements. The defendants were permitted to introduce testimony that he had made such statements. Counsel for plaintiffs insist that this testimony was a violation of the rule that the statements of a vendor or assignor, after he has parted with his title, are inadmissible to affect the rights of the vendee or assignee, citing Muncey v. Insurance Office, 109 Mich. 542; Krementz v. Howard, 109 Mich. 466; Fenton v. Miller, 108 Mich. 246, and other cases. This testimony was not received by the court as substantive proof, but for the purpose of impeachment. While Harris was not asked on direct examination what consideration he received for the transfer of the notes, yet his testimony that he had transferred them to the plaintiffs opened the door for an inquiry as to the consideration and ownership of the notes. No error was committed by the rulingof the court.

2. Error is also assigned upon the introduction of the contract containing the guaranty. If there had been no evidence to show that plaintiffs were not bona fide purchasers this would have been incompetent. But purchasers with notice or with such knowledge as should put them upon inquiry, take subject to the same defense that could be made against the original payee. In other words, such holders of commercial paper stand in no better position than would their assignors.

3. Complaint is made of the following argument by defendants’ counsel to the jury:

“ I stated that the horse had been returned to Mr. Harris, and that if he has not disposed of him he has him at the present time.”

This and similar language is based upon the argument that there was no evidence tending to show that the horse had been returned. The evidence disclosed that upon the failure of the horse to comply with the guaranty the defendants returned him by one Burkhardt to Harris, upon the farm of the plaintiffs at Plain City; that Burkhardt informed Harris that he had brought the horse back; that Harris replied that he could not do anything until he met his partner who would be back at 5 o’clock. Burkhardt further testified:

‘ ‘ I asked where we could leave the horse. He (Harris ) asked the liveryman if he had room for the horse, and he said he could make room. That is where I left the horse. We also agreed to meet in the city.”

He further testified that Harris and Stimmel didn’t meet him as agreed, and that the next morning he again went "to the farm, found Stimmel and Harris, requested another .horse, and they replied that “they would not do anything about the horse.” This was evidence tending to show a return of the horse, and the demand for. another under the terms of the contract.

The judgment is affirmed.

Carpenter, C. J., and McAlvat, Hooker, and Moore, JJ., concurred.