Falk v. Moebs

The plaintiffs in error, Gustav Falk and Arnold Falk, who are citizens of the state of New York, brought suit in the circuit court of the United States for the Eastern district of Michigan against the defendant in error, George Moebs, upon nine certain promissory notes made by the Peninsular Cigar Company of Detroit, upon which they sought to charge Moebs personally as indorser. All of the notes were in form like the following, differing only as to amounts and the time of payment: '$1,061.24. DETR IT, MICH., August 4, 1880. Four (4) months after date we promise to pay to the order of Geo. Moebs, sec. & treas., ten hundred sixty-one & 24-100 dollars, at Merchants' & Manufacturers' National Bank, value received. PENINSULAR CIGAR Co., GEO. MOEBS, Sec. & Treas.' Indorsed: 'GEO. MOEBS, Sec. & Treas.' The first count of plaintiffs' declaration was special, and alleged, in substance, that on July 6, 1880, defendant was the secretary and treasurer of a body corporate known as the Peninsular Cigar Company, then engaged in the business of manufacturing, buying, and selling cigars and tobacco in the city of Detroit; that plaintiffs were then doing business as tobacco merchants in New York city; that the defendant, as secretary and treasurer of said Peninsular Cigar Company, applied to plaintiffs for the purchase of certain merchandise, and offered in payment therefor the notes of said Peninsular Cigar Company; and it was then agreed between the plaintiffs and defendant that plaintiffs were thereafter to sell and deliver the merchandise so applied for, and any other goods which defendant, in behalf of said company, might thereafter apply for, and that in payment therefor the defendant should execute and deliver to the plaintiffs the notes of the said Peninsular Cigar Company, payable to the order of the said defendant, and by him personally indorsed to said plaintiffs; that said defendant thereafter ordered from the plaintiffs certain merchandise of the value of $7,449, and, in accordance with said agreement and in payment for said merchandise, the defendant, upon the several dates indicated and specified in the several promissory notes heretofore mentioned, and with the intent and design of binding, charging, and obligating himself as an indorser upon said notes with the liability of an indorser as defined by the law-merchant, made, executed, and delivered to the plaintiffs said nine promissory notes. To this special count were added the common counts in assumpsit, with a notice thereunder written that the plaintiffs would, under the money counts, give in evidence nine certain promissory notes, copies of which were set out, and in which notice it was stated that said notes would constitute the sole bill of particulars of the plaintiffs' demand. To the special count in the declaration the defendant demurred, and to the common counts he pleaded the general issue. The demurrer to the special count was sustained, and the plaintiffs at the next term of said court brought the cause on for trial upon the issue framed upon the common counts in the declaration. Upon the trial, which was had before said court and a jury, the plaintiffs f fered in evidence the notes referred to, and also the deposition of Arnold Falk, one of said plaintiffs, which it was claimed tended to show that it was the intention of the defendant to bind himself personally in making the said indorsement upon said notes; but this evidence was excluded on the ground that it was not evidence of the personal liability of the defendant. Upon the ruling of the court excluding this evidence error is alleged.

    Levi T. Griffin and C. E. Warner, for plaintiffs in error. [600]

Don M. Dickinson and E. G. Stevenson, for defendant in error.

LAMAR, J.