
    Frederick Spicer v. Jared H. Smith.
    
      Circuit court rule 79 construed. Circuit court rule 79, which, provides that as against the alleged maker of a promissory note in a suit by the indorsee, payee, or holder, the plaintiff shall not be put to proof of the execution of the instrument unless it is denied on oath, does not dispense with the necessity for proving the title of the plaintiff through an alleged indorsement.
    
      Indorsement must be proved. In a suit brought by an indorsee upon a promissory note payable to the order of P. & C. and indorsed P. & C. by H. H. B., agent, it is incumbent on the plaintiff, aside from the execution of the note, to prove that the indorsement was made by H. H. B., and that he had authority to make it; and neither the statute allowing the note to be given in evidence under the money counts, nor the rule dispensing with proof of the execution when not denied under oath, have any effect upon this branch of the proof.
    
      Submitted on briefs, May 4.
    
    
      Decided May 9.
    
    Error to Eaton Circuit.
    The facts are sufficiently stated in the opinion.
    
      Orane & Montgomery, for plaintiff in error.
    
      George A. Armstrong, for defendant in error.
   Graves, J.

This was assumpsit in which Smith declared against Spicer upon the common counts, and set forth the copy of a promissory note with a notice that the original would be given in evidence on the trial. The note and an indorsement were as follows:

“Postoffice address, Eaton Rapids, county of Eaton, state of Michigan, town of Hamlin, May 12, 1869.

“ $150.

“Five months after date, I promise to pay to the order of Perkins & Chilson, one hundred and fifty dollars, for value received, with use.

j “5 Cent ) ¿ Rev. Stamp.j

j 5 Cent ) j Rev. Stamp.j

“'(Signed) Frederick Seicer.”

(Indorsed on the back):

“Pay to the order of Jared H. Smith. Perkins & Chilson. By H. H. Blair, agent.”

The general issue being pleaded, the parties proceeded to trial before a jury, when Smith gave evidence that the note above described was purchased before its maturity, by him through his agent, for value, in the belief that there was aio defense to it, and without notice of any objection to its validity. No affidavit having been made denying the execution of the note, it was then offered in evidence, when Spicer’s counsel opposed its admission on the ground, first, that the indorsement by the payees had not been proved; and second, because the authority of the agent by whom the indorsement purported to have been made had not been shown. The court overruled the objection and allowed the instrument to be read in evidence..

This ruling raises the only question in the case. It is claimed for defendant in error, that no proof of the indorsement was required, because neither the execution of such indorsement or of the authority of Blair had been denied by plea or upon oath, and we are referred, first, to § 371b and 37G7, Gomp. L., and, secondly, to the 79th rule of the circuit court, as sustaining this view. The. statutes cited have no application to cases which originate in the circuit court, and if they had they would furnish no support to the position here taken. This suit was prosecuted by a party claiming to be indorsee against one alleged to be the maker of a promissory note. The indorser was not a party, nor was the indorsement as a ground of liability in any way involved. It was only as an act of transfer of the note and of the right to require payment of the maker that the indorsement pertained to the issue. If the plaintiff had set forth his cause of action specially, he must have alleged the making of the note by Spicer and the subsequent transfer of it to himself, and each of these facts must have been supported by evidence in the absence of any rule excusing it. By allowing the note to be given in evidence under the money counts, the statute has not made the proof of these facts unnecessary. The rule of court, however, has provided that as against the alleged, maker in a suit by the indorsee, .payee or holder, the plaintiff shall not be put to proof of the execution of the instrument, unless it is denied on oath. But the necessity for proving the title of the plaintiff through an alleged indorsement is neither removed nor lessened. In this case the defendant did not deny the making of the note. The plaintiff was therefore not required to prove that fact. But the plaintiff’s title was likewise in issue, and as the rule had no relation to that, it was incumbent upon the plaintiff to prove it.

While it is quite reasonable that a party prosecuted as the maker of a note should be precluded from questioning its execution on the trial, unless he has before denied it upon oath, and while it is proper and just that one who has given currency .to a note by his indorsement, and who is charged as such indorser, should be estopped from disputing the execution of the note so indorsed, it would, be very. unreasonable to make the- failure of the maker to deny upon oath the independent contract of indorsement made by another, equivalent to an admission of the indorsee’s -title, and the rule in question is not open to such.con'struction. In view of the facts in this record, it was incumbent upon the plaintiff to prove that the indorsement was made by Blair, and that he had authority, and the admission of the note without evidence of the plaintiff’s title was error.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.  