34 Mich. 4 | Mich. | 1876
The action in the court below was brought by Brown to recover from Blackwood the amount of certain securities which he had deposited with Blackwood, and which the latter did not account for. For all but one of these, Black-wood had given a written receipt specifying, that they or the moneys received thereon were to be returned to Brown when two certain mortgages were discharged. The discharge, it appears, was to be obtained for the benefit and protection of one Whittaker, -to whom Brown had conveyed the lands covered by the mortgages, and Blackwood was concerned only as having joined Brown in a bond to protect Whittaker against the mortgages. The securities were deposited with him for his protection as surety in this bond.
The declaration was on the common counts, and the first exception in the case is to the ruling of the court that the plaintiff, if the mortgages were discharged so as to entitle him. to the securities, was entitled to sue without declaring specially. This ruling was correct. When Brown had performed his undertaking, the agreement between himself and Blackwood became wholly immaterial, except as a matter of evidence, and there was no more necessity for declaring specially upon it than there would be for setting forth the special circumstances in other cases when one is wrongfully detaining the property of another. The plaintiff was not suing on the contract, but on his ownership; and the contract was only explanatory of defendant’s possession.
Evidence was put in by the plaintiff to show that the two mortgages had been duly discharged. ' Some technical objections were made to the sufficiency of these discharges, but we are relieved from the necessity of considering them critically by the evidence of Whittaker that they were satisfactory to him, and that he delivered up the bond of indemnity as having been satisfied. If Whittaker accepted the discharges, that was all that Blackwood could require.
The plaintiff was permitted to show that besides the
The only other exception which requires notice relates to another suit which was once before us and was remanded for a new trial. — Blackwood, v. Brown, 29 Mich., 483. In that suit the plaintiff sought to recover for these securities, but failed because the mortgages were not discharged when he brought it.. That suit has not been discontinued, but as there can be no recovery in it for the cause of action now relied upon, it is obvious that it cannot be in the way of a new suit, brought after the mortgages were discharged.
The judgment must be affirmed, with costs.
