Roberts v. First National Bank

149 Mich. 507 | Mich. | 1907

Ostrander, J.

(after stating the facts). The testimony introduced on the part of plaintiff tended to prove that Lord was agent for defendant and acted in that capacity in buying the note; that plaintiff w;as sued as indorser of the note, by defendant, a judgment recovered, a transcript judgment entered and levy made; that he paid to the sheriff the amount of the judgment and costs. There was no testimony tending to prove the value of the mortgaged property or the disposition made of it. The defendant bank claimed, and testimony offered in its behalf tended to prove, that it never had knowledge of the chattel mortgage and was not chargeable with the knowledge possessed by Lord because Lord was not its agent in purchasing the note; that it bought the note of Lord in the regular course of business with notice of no facts affecting it except such as were disclosed by the note itself.

As to the claim of damage resulting from the levy, the court said:

“ I think I will dispose of that phase of damages. * * * As a matter of damage the plaintiff could have relieved himself of it at any time, and this matter sued on in this case was available as a defense in the original case. There is no basis for damages.”

To this ruling, an exception was taken and upon the exception error is assigned. The subject is not referred to in the brief. After this ruling had been made, counsel for plaintiff abandoned the last count of the declaration, which was in trover for conversion of the mortgaged property. Therefore, the ruling disposed of the case which plaintiff made and it was repeated, and properly so, in directing a verdict. If it is assumed that it was the duty of defendant either to preserve or to enforce for the sureties on the note the security which it held for payment of the note, that if it did neither it is liable to plaintiff, the surety who, after judgment, paid the debt, for the value of such security, and that it is open to plaintiff in a suit brought by him against defendant to assert such liability, the first two counts of the declaration set out no such cause of action.

The reasons asserted as grounds for a new trial were that since the trial the plaintiff had discovered new evidence “ which will lead to a different result in said cause,” and, surprise at the testimony given by a certain witness. The evidence said to be newly discovered relates to the value of the mortgaged property, to the disposal of it by the mortgagors, and to the agency of Lord. A new trial was refused because the evidence was obtainable for the trial, by diligence, and because upon the whole of the evidence the case was a doubtful one at law. Upon the subject of diligence, it is said in the brief that plaintiff, as Ms affidavit shows, made three trips and many inquiries to discover evidence of the value and disposition of the mortgaged property, and could not obtain it; that he was misled concerning the testimony which one of his witnesses would give.- It is also said that upon close inquiry of this witness it was found that he did not know the alleged facts except from hearsay. It does not appear that this witness was sworn, the inference being that his want of knowledge was discovered before the trial began or during the trial. The trial was begun January 16, 1906. Early in March of the same year, the affidavits relied upon were procured. The showing of diligence now made might have influenced the court to grant a continuance, if one had been asked for, and the showing of surprise might have secured an order permitting a voluntary nonsuit with leave to set the same aside, but neither* showing appeals to a court of review on an application to reverse an order refusing a new trial.

The judgment is affirmed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.