45 Mich. 630 | Mich. | 1881
In this ease the circuit judge directed a verdict for defendant immediately that plaintiff’s counsel had concluded his opening to the jury, and the case is before us on exception to that direction. It is denied that the circuit judge has any lawful authority for such direction in any case; the plaintiff in this State having always a right to go to the jury on the facts. Cahill v. Ins. Co. 2 Doug. (Mich.) 124. It is also insisted that the facts stated in the opening were sufficient, if proved, to entitle the plaintiff to a recovery; and therefore, if the circuit judge had the authority which he assumed to exercise, he erred in exercising it in this case. The record presents no other questions.
I. The authority to direct a verdict for defendant on the mere presentation of the plaintiff’s case by his counsel, is no doubt one that ought to be very sparingly used if used at all, and the circuit judge ought first to be very certain that the presentation is full and complete, and covers all the points the plaintiff intends or expects to cover by his evidence. The circuit judge must not take advantage of mere accidental or inadvertent omissions as the defendant may when submitting the case after the proofs are all in; but if the case stated is sufficient except upon some particular point, should direct
But if he observes due care, the circuit judge commits no error in taking the course that was adopted here. The plaintiff’s opening is in the nature of an offer of proofs, and the circuit judge directs a verdict for the defendant because, assuming the proofs to have been received, they fail to make a case. The trial is thereby shortened, and no wrong is done to any one. The circuit judge has an undoubted right, in any case, to advise the jury to return a verdict for the defendant, when the plaintiff gives or offers no evidence to establish any necessary part of his case. Kelly v. Hendrie 26 Mich. 255.
There is no claim in this case that counsel had failed to make his opening full and complete. We have, therefore, only to see whether a ease was stated which would entitle him to ask from the jury a verdict in his favor.
II. The action was for money had and received by defendant to the plaintiff’s use. The case stated was that for some time previous to 1878, one Sweezey had been in business at Eaton Bapids with the defendant Bonker, as his clerk; that in various ways he had become greatly embarrassed; that plaintiff and defendant were indorsers for him to the amount of $12,000 and upwards; that he had given to plaintiff mortgages as securities for this amount, and to defendant a mortgage for some $2500; that the property mortgaged was otherwise largely encumbered, and was soon to be taken to satisfy previous liens; that it was then in the hands of tenants; that plaintiff ascertained that defendant could do
“ For a valuable consideration I, Mrs. O. M. Spicer, have this 29th day of May, 1878, assigned over all the use of the brick and wooden buildings, also the brick hardware store, all in the village of Eaton Rapids, Michigan, known as the property bought of John T. Sweezey, on the 14th day of May last, to Frederick Spicer, for^ his use and benefit.
SpicerviUe, May 29th, 1878. Mrs. O. M. Spicer.
Witness : George M. Pieros.”
The property described in the fox-egoing paper is the same property from the renting of which defendant had been
The most obvious objection to plaintiff’s recovery springs from the fact that the conveyance by Sweezey was not made to him, but to his wife. It was the wife, therefore, and not the plaintiff, who had a right to suppose that by Sweezey’s conveyance she was obtaining a right to recover rents from his tenants. If, therefore, there was any estoppel in the case which should preclude defendant from collecting rents, it must be an estoppel which arises for the benefit of the wife herself. But plaintiff, conceding that this may have been so at the outset, insists that he, as assignee of his wife, is entitled to claim the benefit of it under the rule laid down by authorities of which Wood v. Seely 32 N. Y. 105 is an instance.
There is no doubt that where an estoppel arises for the protection of property rights, an assignee may have the benefit of it. It would fail to give adequate protection to the party in whose favor it arises if this were not the case. Powell v. Smith 30 Mich. 451. But the serious question in this case is, whether the plaintiff is the assignee of his wife, so as to be entitled to claim the rents as against her. It is not pretended that the instrument she gave him was intended as a conveyance of the equity of redemption ; it does not purport to be so in terms; and is an assignment of the “ use ” only ; and though the statute declares that no deed of conveyance shall be deemed invalid for want of a seal or scroll — Comp. L. § 6194 — yet the absence of a seal may be significant when the purpose of an instrument is not clear, and its terms are indefinite. Indeed we do not understand that any one claims this paper was intended for a deed, and counsel for the plaintiff speaks of it as a parol assignment of the rents. But as a parol assignment there could be nothing for it to. operate upon. Mrs. Spicer did not hold the leases; she was owner of the equity of redemption; and if she had any right to demand and receive moneys from the leases, it was because of that ownership and of the estoppel which was created in her favor'when she acquired the title. Assignment of the “ use ” of the buildings separate from the ownership
Our conclusion is, that the plaintiff was not in jured by the instruction which resulted in a verdict against him, and that the judgment must be affirmed with costs.