TaiLexi AI U.S. Case Law

J. A. Fay & Co. v. James Jenks & Co.

J. A. Fay & Co. (a corporation) v. James Jenks & Co. (a corporation)

J. A. Fay & Co. v. James Jenks & Co., 44 N.W. 380 (Mich. 1889)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
Michigan Supreme Court · State Highest Courts
Decided
December 28, 1889
Judges
Champlin, Other
Citations
44 N.W. 38078 Mich. 3121889 Mich. LEXIS 845
Disposition
Beversed.
Headnotes
Promissory notes — Indorsers—Joint obligors — Discontinuance, 1, Where a note is indorsed prior to its delivery, and the indorsers are not the payees, the contract is in form joint against the makers and indorsers. Weatherwax v. Paine, 2 Mich. 555; Rothschild v. Grix, 31 Id. 150; Herbage v. McEntee, 40 Id. 337; Sibley v. Bank, 41 Id. 196; Moynahan v. Hanaford, 42 Id. 329. 2. When an obligation is joint as well as several, all must be proceeded against jointly, or each severally, subject to certain exceptions, as where one is an infant, or has been discharged in bankruptcy. 3. Where a suit is brought against the maker and the indorsers of a promissory note, which indorsements were made prior to the delivery of the note, a discontinuance as to the maker operates as a discontinuance against all of the defendants. Winslow v. Herrick, 9 Mich. 380; Anderson v. Robinson, 38 Id. 407; Munn v. Haynes, 46 Id. 140; Post v. Shafer, 63 Id. 85.
Summary
Error to Wayne. (Brevoort, J.) Assumpsit. Defendants bring error. The facts are stated in the opinion.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Champlin

Text extracted by OCR from a scanned original; check the original for exact wording.

Champlin, J.

The plaintiff commenced suit against the above-named defendants and the James Jenks & Co. corporation, and declared against them jointly upon the common counts in assumpsit, serving with the declaration a notice that on the trial they would give in evidence under the money counts one certain promissory note, a copy of which is as follows, namely:

“113,000.00. Detroit, October 19, 1886.

“On or before two years after date James Jenks & Co., incorporated, promise to pay J. A. Fay & Co. twelve thousand dollars, at its office in Cincinnati, Ohio; said maker having the privilege of paying any sum at anyi *314 time thereon, value received, with 6 per cent, interest per annum.

“ Due on or before Oct. 19-22-88.

“'James Jenks-& Co., Incorporated.

“By James Jenks, Prest.”

Indorsements:

“James Jenks.

“George A. Jenks.

“F. W. Swiet.

“Pay cashier Citizens* National Bank, Cincinnati, Ohio, or order. For collection. J. A. Fat So Co.”

At the trial the plaintiff discontinued the suit voluntarily against James Jenks So Co., incorjjorated, and filed an amended declaration against James Jenks, George A. Jenks, and Frederic W. Swift jointly. At the conclusion of the trial the court directed a verdict for the plaintiff.

The court erred. It is unnecessary to determine now whether the contract is several as well as joint. As held in this State, the contract is in form joint against the maker and indorsers, where the indorsers are not the payees, and the note was indorsed before the instrument was delivered, as was the case here. . Weatherwax v. Paine, 2 Mich. 555; Rothschild v. Grix, 31 Id. 150; Herbage v. McEntee, 40 Id. 337; Sibley v. Bank, 41 Id. 196 ( 1 N. W. Rep. 930 ); Moynahan v. Hanaford, 42 Id. 329 ( 3 N. W. Rep. 944 ). The rule is elementary that, when an obligation is joint as well as several, all must be proceeded against jointly, or each severally. There is no authority for suing three out of four joint makers. There are exceptions to the rule requiring the proceeding to be against all jointly, as where one is an infant, or one has been discharged in bankruptcy; but this case is not within the exceptions. The discontinuance against James Jenks & Co. operated as a discontinuance against all of the defendants, and the case should have ended there. Anderson v. Robinson, 38 Mich. 407 ; Munn v. Haynes, 46 *315 Id. 140 ( 9 N. W. Rep. 136 ); Post v. Shafer, 63 Id. 85 ( 29 N. W. Rep. 519 ); Winslow v. Herrick, 9 Id. 380.

The judgment must be reversed, with costs of both courts; and, as there can be no recovery under the pleadings, no new trial will be awarded.

The other Justices concurred.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1909: 11914: 11933: 11980: 119092026peak 1909 · 1

Relies on it most ⓘ

  1. McKinley v. Small146 N.W. 230 (Mich. 1914)
  2. Badour v. Zifkin292 N.W.2d 201 (Mich. Ct. App. 1980)
  3. Shelfer v. American Agricultural Chemical Co.152 So. 613 (Fla. 1933)
  4. Strohschein v. Kranich122 N.W. 178 (Mich. 1909)

Most recent

  1. Badour v. Zifkin292 N.W.2d 201 (Mich. Ct. App. 1980)
  2. Shelfer v. American Agricultural Chemical Co.152 So. 613 (Fla. 1933)
  3. McKinley v. Small146 N.W. 230 (Mich. 1914)
  4. Strohschein v. Kranich122 N.W. 178 (Mich. 1909)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 6

DepthCaseCited by
Munn v. Haynes, 9 N.W. 136 (Mich. 1881) 9
Wetherwax v. Paine, 2 Mich. 555 (1853) 25
Post v. Shafer, 29 N.W. 519 (Mich. 1886) 10
Anderson v. Robinson, 38 Mich. 407 (1878) 6
Sibley v. Muskegon Nat'l Bank, 1 N.W. 930 (Mich. 1879) 4
Moynahan v. Hanaford, 3 N.W. 944 (Mich. 1879) 4

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list