Gumz v. Giegling

Grant, J. (after stating the facts). Plaintiffs had sold meat to defendant Giegling, who kept a meat shop in Manistee. The account was an open one, and had been running between four and five months previous to the date of the note. They refused to sell him any more goods unless the account was paid or secured. Giegling was unable to pay, and Mr. Schaaf, plaintiffs’ agent, asked him to give a note with an indorsement. Mr. Giegling suggested that they see defendant Waal, and that he might indorse a note for him. The two went together to Mr. Waal’s office. Mr. Waal gave evidence to sustain the facts set up in his notice. It, however, conclusively appears from his own testimony, as well as that of Mr. Schaaf and Mr. Giegling, that all the conversation upon which he relies as a defense occurred before the note was made out and signed. It is therefore sought to vary the terms of a plain written contract by parol evidence of what took place before its execution. Mr. Waal himself testified, “After the talk was had all round, we all came in there; and the note was drawn up and signed at once, and handed over to Mr. Schaaf.” Time for the payment was extended one year. Giegling told Mr. Waal that, if plaintiffs got this note, they would sell him more meat. Waal was not the payee upon the note, and indorsed it before it was uttered, and before the payee had indorsed it. He is therefore a joint maker. Rothschild v. Grix, 31 Mich. 150. If the note had been executed by Giegling, and delivered to plaintiffs, and they had afterwards secured the indorsement of Waal, without consideration, this defense would have been open to him, under the authority of Kulenkamp v. Groff, 71 Mich. 675. That decision, however, expressly holds that under the facts of [297] this case the defense cannot be sustained. See, also, Aultman & Taylor Co. v. Gorham, 87 Mich. 233. The learned circuit judge was correct in directing a verdict for plaintiffs. The judgment is affirmed. The other Justices concurred.