83 Mich. 486 | Mich. | 1890
This suit involves the right of the defendant to show that a part of the consideration of a certain note given by him to R. P. Toms in his life-time consisted of illegal attorney’s fees charged in the foreclosure of certain mortgages in the hands of Mr. Toms for foreclosure, and to have the amount of such illegal attorney’s fees deducted from said note.
In January, 1889, John N. Macomb brought suit in the Wayne circuit against the defendant upon a promissory note, a copy of which appears in the record as follows:
“ $1,500. Detroit, November 3, 1876.
“ Sixty days after date, I promise to pay to the order of R. P. Toms fifteen hundred dollars at First National Bank, Detroit, value received, with ten per cent, interest.
“A. H. Wilkinson.”
“I hereby assign and transfer the within note to John N. Macomb, of Washington, D. C.
“Julia F. Owen,
“Administratrix of the Estate of S. Caroline Toms.”
In May, 1889, John N. Macomb haying died, his death was suggested upon the record, and an order was made allowing his executrix, Nannie E. Macomb, to prosecute the suit.
The defendant pleaded the general issue, accompanied by the following notice :
“ Take notice that, upon the trial of said cause, the said defendant will show and give in evidence that Eobert P. Toms, the payee named in the note, a copy of which is given in the declaration in this cause, was attorney for one William H. Baxter in the foreclosure of two certain mortgages against one Frederick Schmidt; that this deponent, in order to protect his interest in the land included in said foreclosure, was compelled to give said note, and that said note includes about seven hundred dollars of attorney’s and solicitor’s fees, which were not authorized by law, and that such fees, and the amount thereof, should be deducted from said note at the date thereof, and the payments credited upon the note, so reduced in amount, as partial payments thereof.”
The case came on for trial before the Hon. Cornelius J. Eeilly, circuit judge, with a jury. The following facts were admitted on the record:
“1. That Bobert P. Toms died testate, March 10, 1884, bequeathing and devising all his estate to his wife, Sarah Caroline Toms. *
“2. That Sarah Caroline Toms died intestate, June 17, 1888, leaving Julia Frances Owen, her sister, as her sole heir.
“3. That Julia F. Owen was duly appointed administratrix of the estate of Sarah Caroline Toms, and qualified as such administratrix.”
The plaintiff put in evidence proof of the handwriting of Julia F. Owen, whose assignment of the note to John
Plaintiff also offered in evidence certain entries in what purported to be the day-book kept by E. P. Toms in his life-time, and Mr. Gray was asked the following question :
“Q. Will you look at the -entry there, Jan. 2, 1877? In whose handwriting is that entry ?
“ Mr. Prentis. I object to that as incompetent and immaterial.
“Mr. Gray. I only wish to show this entry in Mr. Toms' writing, showing payment and transfer of this note again to John N. Macomb.
“Court. I think I will allow you to show it.
“Mr. Prentis. I object to his proving the entries in any book in this way. It is not competent to prove the*491 entries in a man's day-book in any such manner as this.
“Court. Note exception.
“A. This entry is in the handwriting of Robert P. Toms : ‘John N. Macomb, debtor, to loan A. H. Wilkinson $1,525, by check No. 1,514, $1,525.' That note was afterwards laid in box belonging to Col. Macomb, and, after Mr. Toms' death, I informed Judge Wilkinson that the note belonged to Col. Macomb.''
Error is assigned upon the admission of this entry from Mr. Toms’ book. The purpose of it was to show by additional evidence that the note belonged to Mr. Macomb. As the proof was already ample on that point, and was undisputed, the entry in the day-book was scarcely necessary. But it was competent. The day-book was authenticated as one kept by Mr. Toms in his life-time; the entry was one- of many made by him in the regular course of business, and comes within a familiar rule of evidence. Price v. Earl of Torrington, 1 Smith, Lead. Cas. (8th Amer. ed.) 563, and notes.
By way of defence to the note, it is claimed that it included six separate attorney's and solicitor’s fees, charged on six separate foreclosures for installments of interest due on two mortgages given by one Frederick Schmidt, of Detroit, to William H. Baxter, of "Vermont.
Defendant, Mr. Wilkinson, being an attorney at law, had in his hands for collection a claim against Schmidt, which he put in judgment, and levied upon the property covered by the Baxter mortgages. .At the time this levy was made, two foreclosure suits were pending in the Wayne circuit court, in chancery, to collect installments of interest due in the fall of 1874 on each of these mortgages. The defendant claims that to protect his levy he found it necessary to purchase the premises on these foreclosure sales, which took place December 9> 1875. The amount for which the' premises were sold included a $100 solicitor's fee in each case, which he was
Another installment of interest having fallen due on each mortgage in the spring of 1875, proceedings were commenced to foreclose for such installments by advertisement, and the sales made September 1, 1875; the amount claimed to be due in each case included an attorney's fee of $100, and the property was sold for such amount, Baxter being the purchaser. This sale was also made subject to the balance that was to fall due on the mortgages. There was no redemption from these two sales; but in September, 1876, after Baxter's title under the statutory foreclosure had become perfect, he conveyed the titles thereunder to Wilkinson, who paid the full amount of the bids and interest, including the $200 attorney's fees.
The third set of foreclosures, for interest due in the fall of 1875, were also statutory, the sales being held March 31, 1876. The property was bid in by Baxter for the full amount claimed, including $100 attorney's fees in each case. Wilkinson, as the owner of the equity of redemption, by arrangement with Mr. Toms, agreed to take the Baxter bids at the March sale, 1876, and on September 1, Mr. Toms sent to Mr. Wilkinson a statement showing the items of the amount claimed to be due at that date to be $1,781.78. For this amount Wilkinson gave his note to Mr. Toms for 60 days, and Mr. Toms remitted to Baxter the amount of such note, less the $200 attorney's fees and his disbursements.
It is urged by plaintiff’s counsel that none of the items of attorney’s or solicitor’s fees paid by Mr. Wilkinson on these various foreclosures can be by him offered as a defense to this suit. It is said that the $200 paid by him on the first foreclosure suits was as a purchaser, and, if the amount paid by him on such purchase was more than the amount due by reason of including the $200 solicitor’s fees at the time, the excess could not be claimed by Wilkinson, but would belong to the person, whoever he might be, who was at that time entitled to any surplus arising from such sale; that the two items of $100, included in the second set of foreclosures, -were paid by Mr. Baxter as the purchaser, and, if the sum bid exceeded the amount legally due by the amount of the attorney’s fees, such amount remained in the officer’s hands as a surplus, and belonged to whoever was entitled at that time to such surplus; citing Millard v. Truax, 47 Mich. 251.
So far as the first foreclosures are concerned, it is clear that the solicitor's fees paid by Wilkinson form no part of the note in suit, for the reason urged by plaintiff’s counsel. As to the second foreclosure, no redemption was made or offered, and the bids ripened into titles in Baxter. When he conveyed these titles to Wilkinson, the fact that he included the attorney’s fees as a part of the consideration demanded for a conveyance is of no importance. He was not bound to convey at all, and, if he did, he had a right to fix his own price. The consideration agreed upon and paid by Wilkinson was $1,108.84.
The last two items of $100 each, which were included in the sale that took place March 31, 1876, were included in the note given on September 1, of which the note in
If the testimony was objectionable on that ground, which we are not called upon to decide, it does not appear that'the point was made by plaintiff’s counsel on the trial, nor is it made here; counsel expressly stating that he prefers to rest his objection to the competency of such evidence upon the ground that it was evidence to contradict a written instrument, and, as such, was inadmissible. Counsel clearly misapprehends the purpose of the evidence. It was not intended to • contradict the note, but to show the consideration upon which it rested. This may always be done unless the rights of a Iona fide holder intervene. It is claimed that Col. Macomb was
Nor is the evidence clear that Mr. Toms transferred the note to Col. Macomb before it fell due. The only evidence to the point is the entry in Mr. Toms’ day-hook, under date of January 2, 1877, in which the note is charged to Col. Macomb as of that date. But he did not indorse the note to him at that time. Indeed, plaintiffs title to sue is acquired through a chain of transfers which does not recognize Col. Macomb as the holder of this note until after the death of Mr. Toms and his wife, many years after the note fell due. The defendant cannot be denied such defense to the note as was open between himself and Baxter, or between himself and Toms. That defense is that, as to $200 of the amount included in the note, there was no consideration except the illegal attorney’s fees. The case should have been submitted to the jury on this theory. The payments of interest, and the promises to Mr. Gray to pay the principal, must go with defendant’s explanation to the jury.
The judgment will be reversed, and a new trial granted.