Nowack v. Lehmann

Grant, J. (after stating the facts). If the instruction of the learned circuit judge could be fairly construed as holding that it was competent for the jury to find that a promissory note delivered and received as a promissory note was in fact intended as a receipt, we should doubt the soundness of the instruction. Billings v. Billings, 10 [476] Cush. (Mass.) 178; Dickson v. Harris, 60 Iowa, 727; Phelps v. Abbott, 114 Mich. 88. But the instruction, which is necessarily somewhat lengthy, read as a whole, informed the jury that it was competent to show a want of consideration, and that they must find that there was no consideration in order to find for the defendant. Under the instruction the jury could not have reached the conclusion they did upon any other basis than that the plaintiff delivered the money to the defendant not as his own money nor as a loan for his father, for whom he was trustee, but under the instructions from the father to pay it over to the defendant as a gift to his son Robert. This was the sole claim of the defendant. There was ample evidence to sustain it. If this was the true state of affairs —and the jury must have found that it was — it follows that there was no consideration for the note. The case falls within the principle laid down in Lovell v. Willard, 28 Mich. 346; Macomb v. Wilkinson, 83 Mich. 486; Kelley v. Guy, 116 Mich. 43; Graham v. Alexander, 123 Mich. 168. Judgment affirmed. Moore, C. J‘., and McAlvay, Blair, and Hooker, JJ., concurred.