O'Dess v. Gunter

Michigan Supreme Court

O'Dess v. Gunter

242 N.W. 804, 258 Mich. 667, 1932 Mich. LEXIS 1333

CourtMichigan Supreme Court

DecidedJune 6, 1932

DocketDocket No. 67, Calendar No. 36,389.

StatusPublished

Cited by2 cases

This text of 242 N.W. 804 (O'Dess v. Gunter) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Dess v. Gunter, 242 N.W. 804, 258 Mich. 667, 1932 Mich. LEXIS 1333 (Mich. 1932).

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Opinion

Potter, J.

Plaintiff sued defendant on a promissory note as follows:

“$500. Jan. 11, 1926

“John Johnson after date does promise to pay to the order of Mrs. Frank O’Dess five hundred dollars at 7 per cent, interest for................ Value received.

“John Johnson,

“Mike Gunter.

“No..... Due April 11, 1926.”

Defendant Gunter pleaded he was an indorser and received no notice of dishonor for a period of four years. There was judgment for plaintiff and defendant Gunter appeals.

*669 To charge one as maker of a note it must appear from the instrument he makes an unconditional promise to pay. 8 C. J. p. 65; 38 O. J. p. 343; 2 Bonvier’s Law Dictionary (Rawle’s 3d Rev.), title, “Maker.”

The note sued upon does not contain the language “I promise to pay,” or “We promise to pay,” or other apt language indicating Gunter promises to pay. It recites, “John Johnson * # * does promise to pay.” The language of the instrument specifically indicates who promises to pay, and thereby impliedly excludes those not named. Gunter made no promise to pay. Not having unconditionally promised to pay, Gunter is not a maker of the note. He signed the note. He is not a maker, drawer, or acceptor, and hence is an indorser. 2 Comp. Laws 1929, § 9312, provides:

“A person placing his signature upon an instrument, otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate .words his intention to be bound in some other capacity.”

Gunter, being an indorser, was entitled to notice of dishonor. -2 Comp. Laws 1929, § 9338; Mellen-Wright Lbr. Co. v. McNett, 242 Mich. 369. Gunter received no notice of dishonor for at least three years, and cannot be held liable on the instrument as an indorser. Judgment as to Gunter reversed, with costs.

Clark, C. J., and McDonald, Sharpe, North, Fead, WmsT, and Butzel, JJ., concurred.

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Potter, J.

Plaintiff sued defendant on a promissory note as follows:

“$500. Jan. 11, 1926

“John Johnson after date does promise to pay to the order of Mrs. Frank O’Dess five hundred dollars at 7 per cent, interest for................ Value received.

“John Johnson,

“Mike Gunter.

“No..... Due April 11, 1926.”

Defendant Gunter pleaded he was an indorser and received no notice of dishonor for a period of four years. There was judgment for plaintiff and defendant Gunter appeals.

*669 To charge one as maker of a note it must appear from the instrument he makes an unconditional promise to pay. 8 C. J. p. 65; 38 O. J. p. 343; 2 Bonvier’s Law Dictionary (Rawle’s 3d Rev.), title, “Maker.”

The note sued upon does not contain the language “I promise to pay,” or “We promise to pay,” or other apt language indicating Gunter promises to pay. It recites, “John Johnson * # * does promise to pay.” The language of the instrument specifically indicates who promises to pay, and thereby impliedly excludes those not named. Gunter made no promise to pay. Not having unconditionally promised to pay, Gunter is not a maker of the note. He signed the note. He is not a maker, drawer, or acceptor, and hence is an indorser. 2 Comp. Laws 1929, § 9312, provides:

“A person placing his signature upon an instrument, otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate .words his intention to be bound in some other capacity.”

Gunter, being an indorser, was entitled to notice of dishonor. -2 Comp. Laws 1929, § 9338; Mellen-Wright Lbr. Co. v. McNett, 242 Mich. 369. Gunter received no notice of dishonor for at least three years, and cannot be held liable on the instrument as an indorser. Judgment as to Gunter reversed, with costs.

Clark, C. J., and McDonald, Sharpe, North, Fead, WmsT, and Butzel, JJ., concurred.

Philip B. Ritzau and Pamela Ritzau, His Wife v. Warm Springs West, Robert L. Brown, Jr. And Cornelia Brown, His Wife, Philip B. Ritzau and Pamela Ritzau, His Wife v. Frederick W. Kimball, Philip B. Ritzau and Pamela Ritzau, His Wife v. Richard W. Lomas and Jeanne Lomas, His Wife, Philip B. Ritzau and Pamela Ritzau, His Wife v. John C. Albertson, Gayle P. Albertson, His Wife, and Peter Flood,defendants-Appellants

589 F.2d 1370 (Ninth Circuit, 1979)

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242 N.W. 804, 258 Mich. 667, 1932 Mich. LEXIS 1333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odess-v-gunter-mich-1932.

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