Page Woven Wire Fence Co. v. Pool

Grant, J. (after stating the facts). The court said there were two theories upon which plaintiff might have proceeded: (1) That the note was lost; and (2) that, if it was not lost, the declaration ought to apprise defendant of the plaintiff’s claim of the manner in which the note came into her hands. Before bringing suit plaintiff knew that defendant had the note in her possession. The payor of a promissory note cannot be subjected to a suit, and compelled to accept a bond of indemnity under the statute, when the payee knows where the note is, and has it in his power to produce it in court. It is not necessary to determine whether the note is negotiable or nonnegotiable. The suit is between the payee and the payor. No third person is interested. The note, which is only evidence of the debt, was in the possession of the payor, the defendant. The declaration does not allege that plaintiff is in possession of the note, but only that it will give it in evidence upon the trial. Plaintiff took the proper and legal steps to do so, and they resulted in the production of the note in court. The sole question for determination was, Had it been paid ? Undoubtedly the possession of the note by the payor made a prima facie case of payment, and threw the burden upon the plaintiff to prove nonpayment. If defendant had not paid it to an authorized agent of plaintiff, the question would be, Was it paid by defendant to [61] some one under such circumstances that the law protects her in doing so ? The court below based its decision on McKinney v. Hamilton’s Estate, 53 Mich. 497 (19 N. W. 263). That case does not apply. The note there was in the possession of a third person claiming title to it, and having the usual marks of ownership. The holder of the note was not made a party litigant, and the estate might have been subjected to two suits, and to two judgments against it. It was held that the claimant must be prepared to produce the note in court upon the trial, so as to be properly marked and impounded. In the present case the nóte is in court, and under its control. All the parties interested are in court, and are parties to the suit. Plaintiff asserts ownership, nonpayment, and that the note did not come lawfully into the possession of the defendant. The declaration asserts ownership and nonpayment. The defendant in her plea asserts payment. The issue is clearly drawn by the pleadings, and both parties understood it. The ruling of the court was erroneous. Reversed, and new trial ordered. The other Justices concurred.