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gence in signing the notes was such that they should be required to suffer rather than an innocent holder. As to a defendant who ned the notes without looking them or being misled as to the purport of the papers by the payee, a verdict should have been directed in favor of the
plaintiff. 4. SAME-FORGERY-JOINT MAKERS.
Although one of the makers denied signing the instru.
ment, which plaintiff's proofs showed that he executed,
the other joint makers were not relieved of responsibility. 5. SAME-CHARGE-EVIDENCE, PREPONDERANCE OF.
In charging the jury on the question of the burden of
proof, no greater weight of evidence ought to be required than an ordinary preponderance, the use of the words "fair preponderance” while not reversible error might well be avoided. There is no rule of law which adopts any sliding scale of belief in civil actions.
Error to Ottawa; Cross, J. Submitted April 17, 1914. (Docket No. 54.) Decided June 1, 1914.
Assumpsit by Charles E. Van Slyke against W. J. Rooks and others upon a promissory note. Judgment for plaintiff. Defendants bring error. Reversed.
F. J. Northway and Odell Chapman, for appellant.
Diekema, Kollen & Ten Cate (Jarrett N. Clark, of counsel), for appellees.
STONE, J. This is an action of assumpsit commenced in the circuit court for the county of Ottawa. The plaintiff filed a declaration upon the common counts in assumpsit, and gave notice that, on the trial, he would, under the money counts, give in evidence a certain promissory note, a copy of which was attached to the declaration, and which reads as follows: "600.00
ZEELAND, MICH., Apr. 11, 1912. "On May 1, 1913, after date, for value received, I promise to pay Calkins & Augsbury, or order, six hundred dollars at the Zeeland State Bank, with interest at 6 per cent. per annum, interest payable annually. "W. J. ROOKS.
ALBERT BEMENT. "M. P. NEENHUIS.
JOHN VAN STRATT. "JOHN C. WEBEKE.
WILLIAM ZONNEBELT. “GERRIT SCHUT.
ARTHUR WIGGERS. “EGBERT J. BOES.
DANIEL D. MEEUSEN.” "ALFRED VAN VORST.
This note bore on its back the following blank indorsement: "Calkins & Augsbury."
All of the defendants appeared and pleaded the general issue, under which they gave notice:
(1) That the note, copy of which was attached to the declaration, was not the note of said defendants, and that, if the signatures of any of them were attached to said note, the same had been obtained by fraud, deceit, and misrepresentation, and that there was fraud in esse contractus, and therefore they were not liable thereon; (2) that said plaintiff was not a holder in due course, and that there was a total want or failure of consideration for said note, said defendants never having received consideration for said note; (3) that they were discharged from all liability on said instrument by reason of material alterations made thereon without the consent of all of the parties liable thereon; (4) that Alfred Van Vorst, one of the said defendants, was an infant at the time the note was purported to have been given, April 11, 1912; (5) that Albert Bement, being one of the defendants whose name is purported to be attached to said note, never signed or executed the said note, as will more fully appear by affidavit denying said execution thereto attached.
Accompanying the plea was the affidavit of Albert Bement denying the execution of the note, and denying that he ever authorized any one to sign his name to said note.
The case, being at issue, was noticed for trial by plaintiff's attorney for the August term of 1913, which notice also stated that it was plaintiff's intention that "an inquest will be taken thereon."
The record shows that the case was set down for trial for September 4, 1913, at which time the parties appeared in court by their respective attorneys, and the plaintiff's counsel claimed the right to an inquest under Circuit Court Rule 14; no affidavit of merits having been filed and served by defendants before the first day of the term. It was claimed by defendants' attorneys that they had noticed the case for trial five days before the notice of trial was given by the plaintiff, and that both parties had demanded a jury. Thereupon defendants' attorneys asked leave to file an affidavit of merits nunc pro tunc as of date before the first day of the term. This motion was granted by the circuit judge, and an affidavit of merits, was accordingly filed nunc pro tunc, to which ruling of the court plaintiff's counsel duly excepted.
It appeared upon the trial that the plaintiff was the purchaser of the note, a copy of which has been given, and also another note of like date and amount, due May 1, 1914, bearing the same rate of interest, and purporting to be signed by all of the defendants, and indorsed by Calkins & Augsbury. These notes are known and refererd to in the record as Exhibits A and B.
The plaintiff was sworn as a witness in his own behalf, and testified that he purchased both of said notes of the payees, Calkins & Augsbury, and gave therefor $1,000, which was evidenced by a check bearing date April 29, 1913, payable to Calkins & Augsbury, and which check appeared to have been duly paid by the bank upon which it was drawn on April 29, 1913.
The plaintiff gave testimony that he was a bona fide holder of these notes; that while he actually purchased them on the 29th day of April, 1913, for the sum of $1,000, that he had agreed to purchase the same from the payees some weeks prior thereto; that he was informed by the payees that the notes in question had been given to the payees upon the sale of a horse by them to the defendants. Without setting forth in full here the testimony in this record, a careful perusal of the same has satisfied us that the undisputed evidence in the case shows that the plaintiff was a bona fide purchaser of these notes before maturity for value, and that the trial court should have so charged the jury.
Upon the trial of the case each one of the defendants, except the defendant John C. Webeke, was examined as a witness. Their testimony tended to show that they had had negotiations with the payees for the purchase of a stallion. The witness Bement testified positively that he had never signed either of the notes, nor had he authorized any one to sign the same in his behalf. It appearing upon the trial that the defendant Van Vorst was an infant at the time the notes were executed, upon motion of plaintiff's counsel, the cause was discontinued as to him. The other defendants, with the exception above noted, all testified that their names attached to the said notes were their genuine signatures, but that they did not know that they were signing promissory notes, and that they had signed the same supposing that they were signing an agreement to form an association for the purchase of said horse. In nearly every instance the defendants testified that they had opportunity to inspect the papers when they signed them; that they read writing in the English language readily; but that they relied upon the representations of one Martin that the papers they were signing had to do simply with an agreement to form said association. In one or two instances, especially in that of defendant Rooks, it was claimed that the signatures of the defendants had been obtained by the fraudulent covering up of the written portion of the instruments which were signed, and that thereby they were deceived.
The trial of the case resulted in a verdict for the defendants of no cause of action, and the plaintiff has brought the case here for review, and has assigned many errors upon the record. Among the errors claimed are the following:
(1) That the court erred in permitting the defendants to file an affidavit of merits nunc pro tunc; (2) that the court erred in submitting to the jury the question whether or not the plaintiff was a bona fide holder of the note sued upon; (3) that the court did not instruct the jury properly or fully enough upon the question of negligence on the part of the defendants in signing the said note; (4) that the court erred in instructing the jury that, in order to recover, they must find by a "fair preponderance" of the evidence that the plaintiff was a bona fide holder of this note for value, and that defendants signed the note knowing that they were signing a note; the instruction having been as follows:
"The burden of proof in this case is upon the plaintiff to establish his case, and every essential element thereof, by a fair preponderance of the evidence; and, before the plaintiff is entitled to recover, he must establish, by a fair preponderance of the evidence, all the essential elements of his case.
“You are instructed that, if you find by a fair preponderance of the evidence that the plaintiff is a bona fide holder of this note, for value, and that the defendants signed the note knowing that they were signing a note, then you will render a verdict for the plaintiff for the amount of the note, and interest at 6 per cent. from April 11, 1912, to date."
In many other portions of the charge the term "fair preponderance of the evidence" was used by the court when speaking of the weight of the evidence necessary for plaintiff's recovery.
1. It is claimed by plaintiff's counsel that the court erred in permitting defendants to file an affidavit of merits upon the trial nunc pro tunc.
Circuit Court Rule 14 has, in substance, been a rule of the circuit courts for many years. It is the contention of plaintiff that the trial court had no dis