Dickinson v. Dustin

21 Mich. 561 | Mich. | 1870

Campbell, Ch. J.

Dickinson and Hodges were sued, among other things, to recover certain moneys collected by a former firm of Crosby and Dickinson, upon the ground that Hodges had taken Crosby’s place in the firm, and assumed the liabili-. ties by an arrangement to which Dustin was a party. Judgment was given against them.

It is claimed as error that the declaration sets forth no sufficient consideration for the promise to pay that indebtedness to Dustin. The objection was not taken by demurrer, but was taken for the first time at the trial. The declaration was very defective in this regard, but it appears from it that the money was collected as a part of the general collecting business of the old firm; that Hodges was to take Crosby’s place and continue the same business which was in their hands and'as a part of-the transaction assumed the indebtedness, and in consideration that they were to go on and complete Dustin’s business, agreed with Dustin to pay him the debt. lu a very roundabout and inferential way, but nevertheless intelligibly, we think, it appears that the retention of Dustin’s business was the consideration of the promise to pay him what had been assumed as between the new firm and the old. We cannot take it for granted, this was a valueless arrangement, — so far as appears from the face of the declaration, and in the absence of a demurrer, we think it comes directly within the principle of Kean v. Mitchell, 13 Mich. R., 207, that a defective statement of consideration is good unless demurred to, if the consideration referred to can possibly be valid.

The Court below refused to charge the jury “that there is no testimony tending to prove that Hodges, or Hodges and Dickinson, ever undertook by any valid binding contract to pay to the plaintiff any other sum than stood to his credit on the books of Dickinson and Crosby, or that he or they undertook to pay that sum in other way than by deducting the amount thus standing to plaintiff’s credit from the compensation to .be received in the Pere cases.” This is also assigned as error.

We find no foundation for such a request in the record. The testimony for the defense was to the purport claimed, but Captain Dustin’s testimony was to the purport that he had given his business to the old firm on certain terms; that his securities were in their hands for collection; and that his consent was obtained that it should continue with the new firm, and that they were to assume the indebtedness. He denies entirely the facts set out in the request to charge, and the dispute -of fact was to be settled by the jury.

It was also assigned as error that Hodges, who was a witness, was allowed to have his credit impeached by a certain entry on the records of the Wayne Circuit Court, in the following terms, and dated March 16, 1869.

“In the matter of Lothrop S. Hodges, an attorney and counselor at law. It appearing to the Court by the testimony of the said Lothrop S. Hodges, given in open court, on the 13th day of March, instant, in the cause of Griffin v. Phelps, file No. 14,006, that the said Hodges is guilty of malpractice and other offenses, which involve a want of moral character sufficient to entitle him to'practice as an attorney at the bar, and the Court having then directed the Prosecuting Attorney to draft and perfect the proper charges against the said Lothrop S. Hodges, and the said Lothrop S. Hodges subsequently, and on the 15th day of March, instant, having appeared in open court, and acknowledged his misconduct, and resigned and tendered to the Court his license to practice, ordered that the said license be accepted, and that the same be and is hereby canceled and annulled, and that the name of Lothrop S. Hodges be and the same is hereby stricken from the roll of attorneys.” »

This testimony was not competent. We have held that it is not improper on cross-examination to question a witness upon his previous criminal punishment or conviction.—Wilbur v. Flood, 16 Mich., 40; Clemens v. Conrad, 19 Mich., 170. But he can only be directly attacked by record evidence of his conviction, and we do not think this document can be used as a record of that sort. A record of conviction for a contempt of court, punished summarily may, perhaps, be comprehended in the single order and judgment. But where an attorney is tried for any other misconduct, it can only be done upon specific charges and an opportunity to be heal’d upon them, so that there may be a full defense, and an appellate court can, if resorted to, determine their legal sufficiency. The judgment and hearing must be, as in other cases, upon the particular charges he is called upon to answer.—Ex parte Bradley, 7 Wal, 364.

. In the present case it would seem that the witness had, upon the trial of the cause named, stated something in his testimony which led the Court to determine that he ought to be held to answer charges of professional misconduct and other offenses, and that some order was made directing the Prosecuting Attorney to prepare charges against him. This order is not produced. We are not, therefore, informed whether it was specific or general, nor whether it was. expected the proceedings would be summary, or in the regular course of a criminal prosecution. The subsequent conviction in the Recorder’s Court cannot, of course, explain this Circuit Court entry. It appears, however, that there was no order to show cause, but that the proceedings, wherever they were to be, were to be upon regular charges presented by the public prosecutor. If those charges were presented and the acknowledgment of the respondent was based upon them, it was necessary to produce them as part of ■ the record. As it now stands, and as was probably the fact, the respondent, before, any charges were presented, seems to have been permitted to resign his certificate upon some confession of misconduct. But an admission of criminality not made in connection with a criminal charge, and in the form of a plea of guilty, stands like any extrajudicial admission, and cannot be entered of record alone as the foundation of a judgment. It is plain that the paper produced is nothing more than an official entry of the circumstances which led the Circuit Court to accept an attorney’s resignation, and is in no sense a judgment or conviction.

Upon the trial of this cause, Dickinson, one of the defendants below, denied having had any personal knowledge before suit that the plaintiff had ever set up any claim against them for a certain item in his bill of particulars. In order to impeach him upon this point, evidence was received that in a former suit the same item had been included in particulars of set-off, served upon the attorney of the parties, but not shown to have come to Dickinson’s knowledge. This was clearly wrong. A notice to an attorney is binding upon his client in the cause, but it is quite possible for the client to be ignorant of it. ( A man’s veracity cannot be impeached on any assumption, that he must have known all that is brought home to his attorney.

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

Cooley and Craves, JJ. concurred. Ohristiancy, J. was not present on the argument of this case.