77 Mich. 573 | Mich. | 1889
The defendant was appointed a United States commissioner at the New Orleans exposition in the years 1884 and 1885. He was also appointed, by the Governor of this State, as one of the commissioners to> represent this State at that exposition, and to collect the materials to be represented there as an exhibit on the part of the State.
It appears that the managers of the exposition at New Orleans sent to Governor Begole, then the Governor of the State, their draft for $5,000, for the purpose of being used in getting up and forwarding an exhibit from this State to that exposition. This draft came to Governor Begole; was indorsed by him over to defendant, Swineford, who indorsed it over to Mr. Kanter, the treasurer of the commission appointed by the Governor. This commission consisted of five persons, who were to represent the State at the exposition, and who were charged with the duty of looking after the exhibits from this State, and of raising money for that purpose. One thousand dollars that came from the managers at New Orleans was turned over to the defendant for the purpose of getting up an exhibit from the Upper Peninsula.* The money received from the exposition authorities being deemed by the commission entirely inadéquate for the making of an exhibit, they applied to the people of the State for aid, and bonds were issued, payable within 30 days after the Legislature of the Stato should provide money therefor. These bonds were signed by the defendant, as a member of the finance committee
The Legislature, at its session in 1885 (Act No. 33, Laws of 1885), passed an act entitled—
“An act to provide for the payment of the expense of the Michigan exhibit at the New Orleans exposition.”
This act appropriated $10,000, and authorized the Board of State Auditors to audit and allow to the Michigan commissioners to the New Orleans exposition the sum so appropriated, or so much thereof as might be necessary to pay the expenses of said commission, and the Auditor General was directed to draw his warrant upon the State Treasurer for the amount so audited and allowed, upon the presentation of the proper vouchers, certified by the Board of State Auditors; but provided that, before any such appropriation should be paid, the bonds issued by the commission, which bonds amounted to $10,000, should be presented to the Board of State Auditors for cancellation. This act took immediate effect, and was approved April 1, 1885. On August 26 following, Mr. Kanter, treasurer of the commission, presented to the State Board of Auditors his account for the expenses of the commission, which was allowed at $8,934.67:
There were three exhibits from the Lake Superior district, — the Upper Peninsula. Two of these exhibits were prepared and furnished by the Michigan Land & Iron Company and the Marquette & Mackinaw Railroad Company, without expense to the commission. The other, the mineral exhibit, it is claimed by plaintiff, was prepared by Mr. A. C. Davis, now deceased, who was a mem
The first claim made by the defendant is that the money sued for, being a part of the $5,000 appropriated by the New Orleans exposition for the furnishing of an exhibit from the State of Michigan, never was the money •of the plaintiff, nor did the plaintiff ever acquire any such interest in it as would authorize the plaintiff to demand or recover it.
It appears from the testimony of Gov. Begole that the moneys were sent to him as Governor of the State, and that he indorsed the draft over to Mr. Swineford, who indorsed it over to Mr. Kanter, treasurer of the commission. The money' was treated as a part of the funds which the State would expend in making exhibits at New Orleans. It was not deemed sufficient for that purpose, and the commission borrowed an additional amount, to make up what was required. This amount or deficiency the State paid, under the direction of the act of the Legislature above referred to. The fund coming from New Orleans was treated by the commission, of which the defendant was a member, as State funds, or, at least, as a fund which lessened the amount which the State was to raise; and the act of the Legislature passed thereafter recog
Claim is also made that there was no evidence introduced that the treasurer of the commission ever presented to the Board of State Auditors the bonds for cancellation, or that one dollar was ever paid by the State towards the expenses of this exhibit, or of the commission. In this the counsel for the defendant is in error. Some evidence was given of the fact, as shown by the record before us. This, however, is not very material to ’the issues presented.
It is also claimed by defendant's counsel that, though the defendant was the agent of the State, and this was
First, that no demand was made, and the defendant, never refused to account; and,—
Second, that, under the provisions of section 309, How, Stat., it was the duty of the Secretary of State to notify the defendant (he being an agent of the State), and also-the Board of State Auditors, to meet at the office of the State Treasurer for a final settlement; and that if, upon such proceedings, any balance was found due, a demand for payment must be made therefor; and, upon refusal, the Attorney General might then proceed to collect the-balance.
Testimony was given on the trial by Mr. Hayden, prosecuting attorney for Marquette county, that in June, 1886, having heard from the Attorney General about the matter, he talked with the defendant upon the subject of the payment of these moneys, and the defendant protested that-the State had nothing to do with it; that the defendant-referred to the fact that some 'balance was demanded of him by the State, and stated that he had a notion to-make a statement of the expenses through the Board of' State Auditors. It appears, further, that the defendant, from time to time, while acting upon the commission, drew from the funds in the hands of the commission certain sums of money for expenses, which were charged in the account of Mr. Kanter, as treasurer, and made a part of the claim presented and allowed by the Board of State Auditors. This suit was commenced in July, 1886, and defendant never presented any claim to the Board of State Auditors. Even if the statute referred to could be-applied to the present case, it sufficiently appears that the defendant refused to recognize the State as interested in.
It is further contended by defendant’s counsel that if the defendant was responsible to the State, and not to the New Orleans exposition, for the unexpended balance of the 81,000, the plaintiff failed to make a case which justified the charge of the trial judge. The charge is as follows:
“Now, it is plain to see that the plaintiff in this case cannot ascertain what- the defendant, Swineford, has done with this money. The facts are entirely within his knowledge. The law is reasonable, and does not require impossibilities; and I think, when a party who is intrusted with money to use for a specific purpose fails to account, or refuses to account, for it, that makes a prima facie case against him, for the donor of the money, or the party to whom it belongs, to recover it from him. It seems to me no hardship to say to him: ‘The facts are within your knowledge; you can show whether or not you have disposed of this money in accordance with the provisions of the trust.’ The other party cannot; and it seems to me that it is clear, under those circumstances, that the plaintiff has made out a case when it has shown a refusal on the part of the defendant to account for the trust funds under those circumstances.”
This charge was followed by instructions to the jury to vender a verdict for 8750, with interest, being the amount received, less the 8250 paid by defendant over to Davis. The case was presented to the court and jury, upon the evidence introduced by plaintiff; the defendant not offering testimony, and not testifying in his own behalf. The.charge, as given, laid down the rule that, inasmuch -as the State had proved the 81,000 in the hands of the defendant to be expended for a specific purpose, and the defendant had refused to account for it, the burden was therefore cast upon him to show that it had been so expended, or what disposition had been made of it.
The declaration contained five counts; the first three
Plaintiff's evidence shows this money in the hands of defendant, under an arrangement to pay it over to aid the Upper Peninsula exhibit. The exhibit to which it-was applied, if at all, is the mineral, and it is shown that this was prepared by Mr. Davis, and the question is raised whether the defendant ever paid more than the-$250 towards that. This $250, it is conceded, the defendant did pay. How far must the plaintifE proceed to make its case? The defendant's plea was a denial of all liability.
The general rule is that the party holding the affirmative of the issue takes the onus of proof, and that, in all instances where the right of action- depends upon the negative averment, the party making it is charged with the burden of proving it. This is in obedience to the rule that the burden of proof is upon him who raises an issue which would be defeated if no proof was offered.. There are, however, a multitude of instances where only slight proof of the affirmative of the issue is necessary to-throw the burden of proving the negative upon the defendant; and there are' also instances where the law presumes the affirmative of the issue. In an action on a. promissory note, the mere production of the note, where-its execution is not denied, is sufficient to establish the-plaintiff's .right of action; the law presuming non-payment from the fact of possession. If the defendant sets up payment, the .burden is upon him to prove it. In actions upon book debt, the rule is different; and, unless-a settlement is shown, and the amount due liquidated,
There are also exceptions to the general rule that he who takes the affirmative of an issue takes the burden of proof; as where the declaration sets up negative matter essential to the issue, which is peculiarly within the knowledge of the other party; and the general rule in such cases is stated to be that where the means of proving the negative are not within the power of the party alleging it, but all the proof on the subject is within the control of the opposite party, who, if the negative is not true, can disprove it at once, then the law presumes the truth of the negative averment, from the fact that such opposite party withholds, or does not produce, the proof, which is in his hands, if it exists, that the negative is not true. 2 Am. & Eng. Cyclop. Law, 652, tit. “Burden to Disprove Negative Averment;” Railroad Co. v. Bacon, 30 Ill. 347; Insurance Co. v. Kearney, 16 Q. B. 925; Rex v. Burdett, 4 Barn. & Ald. 95; King v. Turner, 5 Maule & S. 206; State v. Crowell, 25 Me. 171; State v. Lipscomb, 52 Mo. 32; Sheldon v. Clark, 1 Johns. 513; State v. Richeson, 45 Mo. 575.
I am satisfied, however, that this rule cannot be- of universal application, but that each case must depend upon its own peculiar facts. "Was the court in error in applying it in the present case ? The facts proven showed the money in his hands under an agreement to apply it to a specific purpose; and, from the circumstances surrounding the case, the only purpose to which it could have been applied was the payment over to Mr. .Davis to aid the mineral exhibit. Davis being deceased, his books were put in evidence, showing a credit to the defendant of $250, and no more. The only person living at the time of the trial who had then any knowledge or infor
Some other questions are raised, but we do not deem them of importance, and will not discuss them. The court was not in error in this charge, and the judgment must be affirmed, with costs.