101 Mich. 332 | Mich. | 1894
The plaintiff having appointed defendant Howell its general agent, a contract was executed between them, and a bond, signed by Howell as principal and the other defendants as sureties, was delivered to the plaintiff, upon which bond this action was brought, a copy of the bond being served with the declaration. The plea was the general issue, and no affidavit denying the execution of the bond was filed under Circuit Court Rule No. 79. Hpon the trial it appeared that the parties to the contract had dealings under it, and that advances were made to Howell by the company, commencing in January, 1890, and continuing to March, 1891, and there was evidence tending to show a balance due to the plaintiff under said contract. The defendants were allowed to introduce the evidence of one of their number to the effect that he executed the bond some time in March, 1890, and testimony tending to show that the bond was not accepted by the company until that time. They were also permitted to give evidence tending to show that, during the period mentioned, there was a time when Howell associated himself with one Clark in the business, and that a new contract was made with the plaintiff, under which they worked, and which superseded the contract in question. This was disputed, and Howell not only did not produce such contract, but said, on re-direct examination by plaintiff’s counsel, that the arrangement between himself and Clark was' private, and not between them and the plaintiff, and that the amount of business done by them was small, and kept entirely separate; that “ my account was kept entirely
The court directed a verdict for the defendants, holding:
1. That there was no liability for dealings before the delivery of the bond, which he found to be in March.
2. That “ the original agreement was superseded in June by a fresh agreement, made with Mr. Howell and Mr. Clark jointly, and, when Mr. Howell himself resumed business under the original contract in September, the proof fails to disclose how much he collected, and how much he held for his own purposes, for the period commencing with September and continuing to March 4, 1891, and there is no way on the basis of the proofs of eliminating the months of June and July, and leaving the others to stand separately.”
3. That, as against the sureties, no proofs in the case disclosed the amount due by the defendants to the plaintiff.
The court said that, if counsel could agree upon the . amount due from the defendant Howell, a judgment might be rendered against him, but his counsel declined, saying that they “ objected to any judgment against Howell, because there was no way of ascertaining the amount due at that stage of the case.”
The trial judge was in error in permitting evidence in contradiction of the writing. Under Circuit Court Rule No. 79, the plaintiff qould not be put to proof of the execution of the instrument or the handwriting of the defendants, such execution not being denied by affidavit. It was as though admitted that' the defendants executed and delivered the writing according to its terms. Jenkinson v. Monroe Bros. & Co., 71 Mich. 630; Inglish v. Ayer, 92 Id. 370; People v. Johr, 22 Id. 461. Furthermore, the bond was an undertaking to “pay or hand over all moneys belonging to said company, which shall at any
We think, also, that it was not for the court to determine that the contract was superseded or suspended, the fact being disputed. It should have been left to the jury to say whether it was or not.
Neither could the court properly deny plaintiff the right to a verdict upon the ground that the amount was in dispute. There was evidence tending to show that Howell had received some items, at least, and it was the province of the jury to say how many and what items were shown to have been due to plaintiff.
Other allegations of error appear, which we think it unnecessary to discuss.
The judgment will be reversed, and a new trial ordered.