Wilson Sewing Machine Co. v. Spears

15 N.W. 894, 50 Mich. 534, 1883 Mich. LEXIS 854

• Court: Michigan Supreme Court
• Decided: June 6, 1883
• Status: Published

Opinion

Sherwood, J.

By construction of the one assignment of error in this Court by appellant, the review of the case involves the consideration of the errors set forth in the affidavit, as specially assigned here, and in none of the errors assigned in this case is the question whether the note sued upon is a valid, negotiable note, as not being for a sum certain, raised. Confining ourselves to the questions properly before us the case is this:

The defendant and appellant was the payee of the note and indorsee, and the judgment entered against him in a justice’s court was removed to the circuit by writ of certiorari, and the judgment of the justice was by the circuit court affirmed. The following is a copy of the note:

“ $50.00 Cehorse, Youn 18th, 1879.

One yier after date I promise to .pay to the order of ¥m. Spaers fifty dollars, at American Express Office, Detroit, Mich. Yalue received with-. The makers and endorsers severally waive presentment for payment and notice of protest and non-payment of this note, and agree that if collected after maturity ten per-cent, for attorney’s fees shall be added, and in case of suit:judgment for same shall be included in judgment on note. Without- any relief whatever from valuation or appraisment laws.

P. O. Address, Ccorce Yadich Botol.

Joseph Sifman.”

And endorsed, “Pay to the order of the Wilson Sewing Machine Company; W'm. Spears.”

The party to whom the note was indorsed is plaintiff. It appears by the return to the writ of certiorari that defendant appeared in the case. The declaration was informal in assumpsit, on a promissory note on file, and on all the common counts, to which the defendant pleaded the general issue. The summons at commencement of suit in the justice’s court is a summons to answer the Wilson Sewing Machine Company, a recital sufficient as an averment that the plaintiff was a corporation, and the liberal rule extended to pleading in such courts will permit this as supplying its omission in the declaration.

It is objected that there was no testimony showing the plaintiff was the owner of the note. The case as it comes before us is not distinguishable from the ordinary case of a suit by the indorsee of negotiable.paper against the payee in respect to the legal conclusions resulting from the act of indorsement. The plaintiff who sues as indorsee is presumed to be owner, and defendant’s indorsement sufficiently establishes plaintiff’s right to sue and the character in which he sues. Ransom v. Priam Lodge 51 Ind. 60; Congregational Society v. Perry 6 N. H. 164

It is further objected that the declaration not alleging the plaintiff to be a corporation under the Laws of Michigan, proof of corporate existence was necessary. There was no plea in abatement that plaintiff had not sued in its right name, and there is in the act of the defendant, indorsing the note to be paid to the plaintiff, evidence of the name and lawful existence of the plaintiff as a corporation, which clearly brings the proceeding under the Act of 1871. 1 Sess. L. 1871 p. 176.

* Lake Superior Building Co. v. Thompson 32 Mich. 293; Garton v. Union City National Bank 34 Mich. 279.

The judgment must be affirmed with costs.

The other Justices concurred. .

Act 109 of 1871; 1 Sess. L. 176. (Comp. L. § 5959) Section 1. The People of the State of Michigan enact, That in any suit or proceeding, ■civil or criminal, hereafter instituted in any of the courts of this State, wherein it shall become material or necessary to prove the incorporation of any company or corporation, .or the existence of any joint-stock company or association, whether the same be a foreign or domestic corporation, company, or association, evidence that such corporation, company, or association is doing business under a certain name shall be prima facie proof of its due incorporation or existence pursuant to law, and of its name.