Peltier v. Babillion

8 N.W. 99, 45 Mich. 384, 1881 Mich. LEXIS 728

Opinion

Campbell, J.

Babillion sued Peltier in the circuit court for the county of Macomb, on the common counts, and appended a notice that the plaintiff would give in evidence, under the money counts, a promissory note, a copy of which was appended. This note was in the usual form, for $370 and interest at 8 per cent., dated October 7,1878, and payable one day after date to the “ order of J. V. Mehling estate,” at store 28 and 30, Michigan Grand avenue, Detroit. This was indorsed by Sophia Mehling, sole legatee of John Y. Mehling. It appears that she is also executrix. The circuit court gave judgment on it.

The only question presented by the argument for plaintiff in error, and therefore the only one we need notice, is that this instrument contains no payee, and is not a negotiable promissory note.

Inasmuch as the declaration contains no special count, the negotiable quality of the paper, if valid, does not seem to us important. If not negotiable the assignee can, under our statute, sue in his own name. If negotiable, it is not claimed that Mrs. Mehling, being both executrix and sole legatee, does not hold the title of the estate.

We think that this note was a valid instrument, and payable to the proper representative of the estate. Such was the manifest intent of the parties, and there is no legal reason that we can discover to the contrary. There is no uncertainty about the intent, and there has been no change in the representative.

The judgment must be affirmed with costs.

The other Justices concurred.