112 Mich. 258 | Mich. | 1897
This action was brought upon an insurance or guaranty policy, which provided that—
“In consideration of the sum of $72, hereby insures S. A. Sloman & Co., of Detroit, in the State of Michigan, to an amount not exceeding $2,000; against loss sustained by reason of the insolvency of debtors owing the insured for merchandise usually dealt in, sold and delivered in the regular course of business between the 1st day of April, 1893, and the 31st day of March, 1894, both inclusive, in excess of f per cent, on the total gross sales and deliveries made during said period, subject to the terms and conditions printed below or attached hereto. This policy shall expire on the 31st day of March, 1894.”
The insured sent 9 notices of loss to the insurer before March 31, 1894, and 22 after that date, but within 90 days after such date. Those last mentioned were admitted in evidence, subject to an objection “that these losses were not covered by the policy, and were not sent in during the life of the policy.”
Under a request to charge, it is claimed that the court should have excluded from consideration by the jury all claims of loss not shown to have accrued before April 1, 1894. The question discussed is whether the policy covers losses where the insolvency or act of the debtor which makes the debt a loss, within the meaning of-the policy, occurred after March 31, 1894, that being the date of the expiration of the policy; and counsel for the
It is obvious that this policy contemplates a credit business, for there would be nothing to insure if it does not. The time and terms of credit are not fixed, nor can we indulge in any assumptions upon the subject beyond the inference that the usages of trade in this respect were expected to be followed. Of necessity, there would be sales made during a time immediately preceding March 31, 1894, upon which the plaintiffs would receive no indemnity under this policy if defendant’s .construction is to be adopted, unless insolvency should immediately follow the purchase. The sales made during the period are clearly
The final proofs of loss were received in evidence against objection, and the court failed to instruct the jury (as requested) that such proofs could not be taken as proof of any fact therein contained. We are satisfied that such document was not proper evidence of the fact of loss, but, if there was not other evidence of loss upon each of the items submitted to the jury, counsel do not show or state the fact. No testimony was offered by defendant’s counsel, and the prima facie case of plaintiff, not being contradicted, was sufficient evidence, and defendant was not injured by the failure to give this request. Counsel say that this document was assumed to be prima facie evidence of the claim, but we find testimony which supports it. Mr. Sloman testified, without objection, that the paper “correctly represents the insolvents’ accounts and losses sustained,” etc. Upon cross-examination he was examined at length upon the respective items.
The next important question raised relates to the alleged refusal to instruct the jury that “there must be borne by the plaintiffs losses amounting to $525 before the defendant’s liability begins.” The court did instruct the jury upon this subject. He said:
“It appears' that, in estimating the losses under the terms- of this contract, the amount of yearly sales which the plaintiffs were authorized to make, as far as this contract bears upon the losses in this case, was $70,000. It*263 also appears that there is to be deducted from these losses three-quarters of one per cent., according to the terms of this policy.”
If it appeared that this meant three-fourths of 1 per cent, upon the losses, instead of upon $70,000, it would be erroneous; but there is everything to indicate that the plaintiffs’ counsel made no such claim, and that all concerned understood the amount to be $525. Apparently, the court supposed that he was giving the substance of the request, as indeed he was if the amount was not in dispute. His attention was not called to the matter by exception or otherwise, and we should not reverse the case upon a technical construction of language if it misled no one.
Error is assigned on the refusal to direct the jury “ that the loss claimed on A. S. McDonald’s account was not a loss under the terms of the policy.” Mr. Sloman said that it appeared that all that remained of this item consisted of attorney’s fees, protest fees, and expenses, and sundry small claims, which McDonald would not recognize or pay, and which they did not care to litigate. Counsel say that this testimony shows that the entire claim was for attorney’s fees, expenses, interest, and protest fees, and in no sense a claim for goods sold and delivered, and was not covered by the policy, and, furthermore, that it appears that in the computation it must have been allowed in full. It seems to be conceded by counsel for the plaintiffs that this was a claim for attorney and other fees, etc., and not a balance upon sales; and we think the evidence shows it. It does not appear that it was not included in the verdict, nor is its allowance in any way disputed by counsel. It is true that the court repeatedly said that attorney’s fees could not be recovered, and it is not surprising that this subject should have been overlooked as to other items. We think, however, that the request should have been given, and this claim withdrawn from the jury.
We are of the opinion that the sale of the Burroughs &
As there is reason to believe that the McDonald claim was included in the verdict, we feel constrained to reverse the judgment, and direct a new trial, unless the amount of said claim shall be remitted. The defendant should recover costs of this court. It is so ordered.
ON MOTION TO MODIFY.
Hooker, J. In this cause the defendant’s counsel move a modification of the judgment, counsel for the plaintiffs having elected to remit the sum of $140.32, as permitted by the opinion filed. The motion is based upon the claim that, after deducting the sum of $140.32, the judgment is still greater, by $107.18 than it should be.
The original brief of the defendant contains a computation purporting to show that plaintiffs sustained losses upon accounts against “rated debtors” of $375.36, and unrated debtors $500, making $875.36, from which the “initial loss” to be borne by plaintiffs, of $525, should be deducted, leaving, with interest added, $380.13 as the total, including the McDonald claim of $140.32, which being deducted, would leave $239.81 as the limit of defendant’s liability. It is admitted that the question was not raised by an exception, but it is urged that, inasmuch as error was found upon another point, the court should have ordered a new trial, inasmuch as the judgment was clearly excessive after deducting the McDonald account of $140.32. If we accept the theory of defendant’s counsel upon the law, we must then inquire whether the evidence in the case supports their claim that the verdict wms excessive.
In defendant’s original brief, counsel submit a table
It is a general rule that error will not be presumed, but must be made to appear. The only error clearly shown involved $140.32, and we required plaintiffs to remit the amount or submit to a new trial. We are now asked to grant a new trial upon the statement of counsel that the verdict is excessive. If this record clearly showed that items were included in the verdict unjustly, it may be doubted if we should send the case back for a new trial, if error was not assigned upon them, inasmuch as counsel see fit to remit the only claims upon which error was assigned. Still less would we be justified in doing so where the record makes it uncertain that the verdict was excessive. It is the practice of this court to refrain from -ordering new trials where the record is such as to enable it to eliminate the errors, and render a judgment for the items regarding which no error is shown. One of the most pernicious features of our jurisprudence is the opportunity afforded to defeated litigants to compel their oppo
The motion is therefore denied.