Freeman v. Ellison

Campbell, J. In this case Ellison declared upon an alleged joint note for $500, made by the three defendants below, the defendants Enright and Spencer signing as partners, dated October 10, 1872, and payable to plaintiff or order in one year, with interest at ten per cent. The declaration also contained the common counts with a copy of a note, in which it appeared that Freeman’s name was signed on the back, and the other parties appeared to be makers on the face. The plea by Freeman iras the general issue without affi [462] davit, accompanied by a notice purporting, in brief, to rest on the defense that the note was made and delivered by Enright and Spencer to Ellison as a complete obligation, and that Freeman endorsed it without any consideration at Ellison’s request, and that no steps were taken to notify him of non-payment. Enright-and Spencer suffered judgment to go by default. Upon the trial, after introduction of the paper, defendant was excluded from showing that the endorsement was made after the original note had become operative, and it was further held that proof of want of consideration would not avail him. The rule requiring an affidavit to support a plea declares that without it “the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant.” Eule 79. It is now claimed for plaintiff below that this precludes any inquiry into the date of delivery or the circumstances of the signing as bearing on any defenses dependent on time in any way. There is no authority that we know of for any such construction of the rule. Undoubtedly when a plaintiff produces in court an instrument corresponding to the one set forth he is exempted from proving its execution. But the actual time of delivery may involve questions which it would be absurd to hold foreclosed by any such assumption. If a note is dated back in order to include usurious interest, and that defense is set up, it would hardly be regarded as bearing on the question of execution. Execution can only refer to the actual making and delivery, but it cannot involve other matters without enlarging its meaning beyond reason. The only object of the rule was to enable a plaintiff to make out a prima facie, not a conclusive case, and it cannot preclude a defendant from introducing any defense on the merits which does not contradict the execution of the instrument introduced in evidence. It has never been denied that an inquiry may always be made into the consideration of the note, or into the relative positions of the parties as principals and sureties. It has [463] never been denied that a surety inay have a complete defense to a note 'which he has executed with others. And we can perceive no reason why, in any case where the consideration can be entered into at all, it cannot be examined into on behalf of one defendant as well as all. It certainly is competent to give evidence exonerating one partner on partnership paper given mala fide, which may bind his co-partner. In Tinker v. McCauley, 3 Mich., 188, the opinion of this court is given that the nature and effect of contemporaneous and subsequent guaranties as contracts is not different, and that the only distinction is as to what consideration will support them. The promise is the same in both, and there is usually no written date except that of the note itself to determine the time of either. If the admission that a party executed a paper exhibited goes further than to admit that he signed and delivered the paper as it appears, it goes beyond what the plaintiff would be called on to prove in a prima facie case, and in bar of a defense which might be specially pleaded. There is another matter which should not be overlooked. This note was introduced when the declaration - with the common counts presented this note appended with all the signatures upon it, and when it was offered it was offered generally and not under the special count. Had there been no,special count it cannot be pretended that the note itself indicated of necessity any contemporaneous joint liability. The existence of that would depend entirely upon the date of the endorsement. It has never been held by this court that there is any joint liability on a subsequent endorsement, and the decisions have so far based this not on a presumption, but on independent proof of contemporaneous execution. Wetherwax v. Paine, 2 Mich., 555; Rothschild v. Grix, 31 Mich., 150. The special count does not describe the note by its form, but only by its legal effect. The production without objection of this note, which was admissible under the common counts, whether endorsed contemporaneously or not, cannot be regarded as precluding objections to its accordance with^ the special count, and it cannot [464] be claimed that on its face it is any more consistent with a contemporaneous than with a subsequent execution by Freeman. In this point of view evidence of the time of delivery and of the want of consideration merely disposes of an ambiguity as to whether the original consideration would support the liability; and, whether the presumption on the face of the instrument is in’ favor of plaintiff or defendant, it cannot be conclusive against either. Plaintiff could get no advantage by subsequently withdrawing his claim under the common counts. As the defendant assumed the burden of proof, the question in regard to presumptions of date on the- face of the paper become unimportant. But we think his evidence should have been received. We take occasion to repeat what we have said before, that there is no reason whatever why a circuit court should not allow an affidavit to be filed at any stage of the cause, and that such leave ought not to be refused where it will work manifest injustice to decline it. Judgment must be reversed and a new trial granted. Cooley, C. J. and Graves, J., concurred. Marston, J., did not sit in this case.