Warder, Bushnell & Glessner Co. v. Gibbs

Montgomery, J. The plaintiff sued upon a promissory note, which reads as follows: “ $900. Jackson, Mich., Dec. 38, 1883. “Six months after date I promise to pay to the order of J. H. Shiek nine hundred dollars, at the First National Bank of Corunna, Mich., value received, with interest at 8 per cent, per annum until paid. “J. H. Shiek.” On the margin was the following statement: “Collateral to 134, 557-8-9.” On the back of the note was the following indorsement: “J. E. Gibbs;” also the following: “For value received I hereby waive demand, protest, and notice of protestation of the within note. “J. H. Shiek & Co.” The plaintiff offered in evidence the note, proved that* the indorsement was in the handwriting of J. H. Shiek, the payee, and rested. The defendant offered evidence tending to show that he signed the note for the accommodation of J. H. Shiek, and that plaintiff became the owner of it after maturity. The circuit judge directed a verdict for the plaintiff. Two points are made by the defendant in this Court: First, that, as the note set out in the declaration was one payable to the order of J. H. Shiek & Co., there was a variance between the note offered and the one introduced. This variance was not discovered until after the note had been received in evidence, and it was within the power of the court to permit an amendment, [31] and, as the defendant could not have been surprised by the course which the testimony took, we can ' treat the amendment as having been made. Enright v. Insurance Co., 91 Mich. 238; Smith v. Pinney, 86 Id. 484. As the indorsement was shown to have been in the handwriting of Shiek, it was sufficient to transfer the title. The defendant’s further contention is that, having shown that he signed this note *for the accommodation of Shiek, it is incumbent upon the plaintiff to show affirmatively that it bought it, and paid value for it. But the defendant’s testimony went further than this, and showed that the note was discounted at the First National Bank of Corunna, and that Shiek received the money on it. This, in the absence of any showing that the note had been paid, entitled the present holder to recover upon it. The. judgment will be affirmed, with costs. The other Justices concurred. [32] L