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cretion in this matter, and no power to permit the filing of the affidavit of merits. The evident purpose of the rule is to relieve the court from spending its time in the trial of actions on promissory notes, etc., unless the defendant shall make and file an affidavit of merits.
In Wells v. Booth, 35 Mich. 424, this court said that in case a defective affidavit of merits had been filed in good faith, the proper practice was to permit an amendment thereof.
An examination of the case of Bitzer v. Wagar, 83 Mich. 223 (47 N. W. 210), will show that this court has recognized the power of the circuit court to permit the filing of an affidavit of merits later than the time prescribed in the rule, in its discretion. It cannot be reasonably said that this rule has any greater force than a statute. An examination of our decisions will show that we have frequently recognized the power of the circuit court to enter rules to plead nunc pro tunc, also notices of request for estimation of value of premises under the ejectment statute, etc. Coe v. Hinkley, 109 Mich. 608 (67 N. W. 915); Goebel Brewing Co. v. Medbury, 153 Mich. 49 (116 N. W. 543); Brooks v. Fairchild, 36 Mich. 231.
We cannot say there was an abuse of discretion on the part of the circuit court in permitting the filing of this affidavit, especially where it appears, as it does here, that there was no claim of surprise or unpreparedness on the part of the plaintiff, nor was any continuance asked for. Under such circumstances, we think the discretion reposed. in the court was not abused, and that it was not error to grant the motion of defendants.
2. As we have already said, we are of the opinion that, under the evidence, the trial court should have charged the jury that the plaintiff was a bona fide
holder of the note sued upon. The law in this State is well settled upon this subject. For the decisions of this court we need only refer to the recent case of Hakes y. Thayer, 165 Mich. 476, at page 488 (131 N. W. 174), (where the authorities are collected), in which this court said:
"It was at one time held that circumstances which ought to excite the suspicions of a prudent and careful man constituted notice and put the purchaser upon inquiry. This rule has been abandoned, and it is the almost universal rule now that neither suspicions, nor even gross negligence on the part of a taker will affect his right, unless the suspicions or circumstances amount to bad faith. Suspicions or even knowledge of facts which will fall short of bad faith do not amount to notice"-citing cases.
Section 58 of our negotiable instruments act (Act No. 265, Pub. Acts 1905), reads as follows:
"To constitute notice of an infirmity in the instrument, or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith."
We find nothing in the record, either as to the time when the purchase was made by the plaintiff, or the amount which he paid for the notes, to indicate any evidence of bad faith. Within the authorities it must be said that the evidence shows that the plaintiff took the notes for value. See 1 Daniel on Negotiable Instruments (6th Ed.), $$ 777 to 780. It also appears that the plaintiff acquired the paper in what may be termed the ordinary or usual course of business, by which phrase is meant to describe a transfer according to the usages and customs of commercial transactions. Id. $ 780.
Where the testimony of the plaintiff's bona fides is undisputed, it is the duty of the court to so charge the jury; and that question should not be submitted
to them. Borden v. Clark, 26 Mich. 410; Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306); Drovers' Nat. Bank v. Potvin, 116 Mich. 474 (74 N. W. 724).
Section 59 of the negotiable instruments act is as follows:
"A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon."
3. We think it was the duty of the trial court to have charged more fully than it did upon the question of whether the defendants were guilty of negligence in signing the note in question; and in saying this we are well aware of the extent to which this court has gone upon this subject, as indicated by the following cases: Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497); Gibbs v. Linabury, 22 Mich. 479 (7 Am. Rep. 675); Anderson v. Walter, 34 Mich. 113; Soper v. Peck, 51 Mich. 563 (17 N. W. 57); First Nat. Bank of Sturgis v. Deal, 55 Mich. 592 (22 N. W. 53); Beard v. Hill, 131 Mich. 246 (90 N. W. 1065); Standard Portland Cement Corporation v. Evans, 205 Fed. 1, 125 C. C. A. 1.
The doctrine of Beard v. Hill, supra, is that a promissory note, the signature to which was procured by trickery or substitution, or was affixed by another without authority, was void, even in the hands of a bona fide holder.
The following may be said to be a fair sample of the testimony of some of the other defendants in the case. Defendant Boes, after testifying to having signed in the little book, referring to the association, said:
"Afterwards I signed some other papers. The name of Egbert J. Boes on Exhibits A and B is my signature. I signed that in Dr. Rooks' office. This Jimmie was present that took care of the horse. That
was all that was present. At that time Martin was out of town. Mr. Augsbury was not present. I did not sign the note in the presence of Mr. Martin or Mr. Augsbury.
“Q. What was said to you when you signed this document?
“A. He (Jimmie) says: “They left the notes here. They are all gone at present.' He says: 'And if you want to sign up you can sign up; that is, if they are the notes. He left the papers here.'
"Q. What do you mean by that last statement?
“The papers is right here, if you want to sign them.' I signed them; he had them laying right there on the desk; he took them out of a big envelope and laid them right there on the desk, and I signed them. When I came back from work at noon Dr. Rooks told me he heard these were notes; that is the first I heard about it.”
On cross-examination, the witness testified as follows:
“When I signed these notes I did not take them into my possession, only they were lying on the desk. They laid right there, and I had control of them while I signed them. Nobody interfered with my looking at them and examining them as much as I wanted to. I read English, and am 29 years old. I have some education, to about the seventh grade. I read the papers; I read English readily. And the same way with the book; when I signed the book that day, the contract, I had an opportunity, if I wished to, to make such examination as I wanted to, I guess; but I never did it."
In speaking of conduct of this kind, we refer to section 850 of the sixth edition of Daniel on Negotiable Instruments, where that author says:
“The sixth class of cases are those in which the party possesses the ordinary faculties and knowledge, and is betrayed into signing a bill or note by the assurance that it is an instrument of a different kind. It is generally agreed that if the party is guilty of any negligence in signing the paper, he is bound; and the act itself, it seems to us, can hardly be committed without negligence. A man has no right to have eyes and see not; or ears and hear not; and while the law should protect those who suffer from the want of the senses in their proper development, or ordinary education to throw the burden of the failure to use them upon innocent third parties. In such cases we should say the act of signing the paper without intending to do so, as a general rule, imported negligence per se, and rendered the party liable. A misrepresentation by a total stranger is not sufficient to defeat an action on a promissory note, plainly legible, and assigned before maturity to a holder for value, when the only excuse of the maker is that he was too busy to read the note. If he has full and unrestricted means of ascertaining the true character of the instrument before signing it, but neglecting to avail himself of such means of information, and relying on others' representations, he signs and delivers a negotiable paper, instead of a different paper, which he intended to sign, he cannot be heard to impeach it when it has been passed to a bona fide holder. In accordance with this doctrine it was held in Iowa that where one Matting was induced to sign a promissory note under the false representation that it was a contract of agency, respecting a certain patent seeder and cultivator, he was bound to a bona fide holder"—citing, Douglass v. Matting, 29 Iowa, 498 (4 Am. Rep. 238).
In that case it was said:
“The defendant intrusted the one with whom he was dealing with the preparation of the instrument. The instrument as prepared was not what defendant had agreed to sign, but was voluntarily executed by him. The act of the agent was a fraud whereby defendant was induced to make the note, and not the false making of it, which is necessary to constitute forgery.
Now it would be manifestly unjust to permit the maker, while admitting the genuineness of his signature, to defeat the note, on the ground that, through his own culpable carelessness while dealing with a stranger, he signed the in