Littlefield v. Dingwall

Champlin, J. Suit was brought in the Wayne circuit court against defendants upon the following promissory note:. “$700. Detroit, September 8, 1877. “ Two years after date we promise to pay to the order of Justus Littlefield seven hundred dollars at his office, value received, with ten per cent, interest; interest pay [225] able semi-annually. This note is collateral to mortgage bearing even date herewith. Phebe Dingwall. “Geo. Dingwall.” Said note is indorsed on the back as follows: “February 8, 1882. “Received on the within note $300, being what mortgaged .property sold for by Dingwall. “J. Littlefield.” The defendants pleaded separately; Phebe Dingwall pleaded the general issue, and George Dingwall gave notice under his plea of the statute of limitations. On the trial, plaintiff was sworn, and testified in his own behalf that the consideration of the note was a balance due him from George Dingwall of something over $150, and the rest was cash loaned to him. It appeared that Phebe was the wife of George Ding-wall, and signed the note with her husband, and at the same time gave a mortgage upon her separate property, being a house and lot in Marshall, as security. Mrs. Ding-wall afterwards sold the property for $300, and turned the avails over to plaintiff, and he discharged the mortgage, and indorsed the amount upon the note. No other payments were made. Plaintiff testified that he told George Dingwall that he had indorsed the $300 on the note, and he replied, “All right.” George Dingwall gave testimony, on behalf of defendants, tending to show that he was, at the time the note was given, in the grocery business at the corner of Montcalm and Beaubien streets; that his wife was interested in that business, not as a partner, but she had put means of her own in the business; and that the money borrowed from plaintiff went to pay the debts of the grocery business. Conrad Clippert, who advised with Mrs. Dingwall in relation to the sale, testified [226] “They had failed in business, Mr. Dingwall and Mrs. Dingwall. They could not raise the money, and I guess Mr. Littlefield insisted on having something, or wanted a deed of the property; and then I advised her to execute a deed, * * * and this I understood was to be a final settlement of the claim of $700." The court charged the jury that Mrs. Dingwall could not be held upon the note, for the reason that she could not become personally liable upon the promise to pay her husband's debt, and the payment and indorsement upon the note from the avails of the mortgaged property did not take the case out of the statute of limitations as to Creorge Dingwall, and directed a verdict for the defendants. We perceive no error in this charge. The testimony, when given its broadest latitude, only went to sIioav that ’Mrs. Dingwall was interested merely as a creditor of her husband, and not as joint oAvner Avith her husband in the grocery business. The plaintiff did not regard her as jointly interested with her husband when he loaned Mr. Dingwall the money and took the note. He understood that she was pledging her separate property to secure her husband's debt, and, so far as the note was concerned, she stood in the relation of surety to him. Mr. Ding-wall was not present when the property was sold and the money turned over by Mrs. Dingwall, and he had nothing to do with that transaction. Had she been liable on the note as a joint debtor, the payment made by her from her own means would not have saved the case from the operation of the statute as to him. He has made no payment, and no written promise to pay the note. Six years elapsed after the maturity of the note and before suit and the statute is a bar to a recovery as against him. [227] The judgment must be affirmed. Sherwood, C. J., Morse and Campbell; JJ., concurred. Long, J., did not sit.