Judson v. Pratt

Brooke, J. (after stating the facts). Section 12335, 3 Comp. Laws 1915, provides: “Nothing contained herein shall alter, take away or lessen the effect of a voluntary payment of any principal or interest, made by any person; but no indorsement or memorandum of any such payment written or made upon any promissory note, bill of exchange, or other writing by or on behalf of the party to whom such payment shall be made, or purport to be made, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of the provisions of this chapter.” The first assignments of error argued by defendant are those relating to the admission of the notes in question in evidence. The case of Rogers v. Anderson, 40 Mich. 290, is cited, where it is said: “Unexplained indorsements of payments could not be received as evidence, so as to take the case out of the operation of the statute.” [294] Counsel for defendant emphasize the words: “Could not be received as evidence.” These words should be read with the context, and, so read, the meaning simply was that the statute itself declares that the indorsements themselves are not sufficient proof of payment so as to take the case out of the operation of the provisions of the statute. The statute does not make the indorsements incompetent as evidence but declares them to be insufficient. In any event the objection goes merely to the order of the proof, as after the admission of other evidence in the case the notes with their indorsements would have been admissible. A second group of assignments of error relative to Exhibits 4 and 5 are argued and it is asserted that all testimony touching the said exhibits should have been excluded, counsel saying: “Without any proof of Pratt’s presence; without proof of any knowledge on Pratt’s part; without any proof of Pratt’s assent, the plaintiff, against defendant’s objection, was allowed to call this proof of payment sufficient to take the case out of the statute.” We are of opinion that Exhibits 4 and 5 were admissible in evidence; that they were properly identified by the witness, George H. Judson, and that his testimony touching the same was competent. Its weight was of course for the jury. Whether the exhibits in question bearing date the same day as the indorsements upon the notes, taken in connection with the defendant’s indorsement of the check, Exhibit 5, and the payment of said check three days later, were sufficient evidence that defendant had voluntarily paid plaintiff’s decedent both the amount of the check and the amount shown by the indorsements on the notes, by the delivery of this hay and straw, was peculiarly a question of fact' for the determination of the jury. Complaint is made of some portions of the charge [295] of the court. Taken as a whole, and, particularly, in view of the part thereof quoted, we believe that the jury were not misled as to the controlling question of fact to be determined by them. The judgment is affirmed. Bird, C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.