Docket No. 32 | Mich. | Apr 10, 1920
(after stating the facts). The first eleven assignments of error argued by appellant refer to admission or exclusion of testimony. We are of the opinion that no prejudicial error is disclosed under these assignments.
The twelfth assignment is based upon the refusal of the court to grant defendant’s motion for a directed verdict, upon the following grounds:
“1. That the action was trover and could not be maintained under the judicature act of 1915 (3 Comp. Laws 1915, § 12350).
“2. That no lawful demand had been made upon defendant for the car in question before suit was brought.
“3. That from the undisputed evidence, the title to the' car was not in plaintiff at the time suit was • brought.
“4. That at the time this action was brought, the . undisputed evidence showed the title of the car to be in the Ellis bank.
*682 “5. That there had been no lawful tender made, nor had there been payment into court of the balance due upon the car.”
We are of the opinion that this motion was properly refused for reasons hereinafter stated.
The thirteenth assignment is based upon the refusal of the court to charge as requested. The fourteenth is based upon the refusal of the court to grant a new trial and the fifteenth to the charge as given. The last four, assignments will be discussed together.
The declaration was entitled, “a plea of trover,” and contained a full statement of the case from plaintiffs point of view, charging that the plaintiff was legally entitled to the possession of the car; that the defendant had wrongfully secured the possession of it and had unlawfully converted the same to his own use. To this, declaration, defendant interposed a plea of the general issue only.
It is now defendant’s claim that the action of-trover, being abolished by the judicature act of 1915 (3 Comp. Laws 1915, § 12350); a verdict should have been directed in his favor. The court held that the action, as shown by the declaration, was an action of trespass on the case for conversion. He further held that while the word “trover” was inadvertently used, it might be stricken out by an amendment. We are of the opinion that in so holding the learned circuit judge was right. Defendant was fully advised by the declaration of plaintiff’s claims and chose to meet them by a plea of the general issue instead of seasonably questioning the propriety of the pleading.
Touching the claim that no demand or tender of payment.was made before the commencement of the suit, we are of the opinion that, under the plaintiff’s theory, all the demand and tender necessary or possible (considering the conduct of the defendant) was made.
The court instructed the jury that if they found plaintiff was entitled to recover, the measure of his damage would be the value of the “Crow-Elkhart” car, less, the sum of $100 and the Government tax, evidence as to the amount of which was rather unsatisfactory, but which was fixed by the court in the charge at the sum of $50. This, we think, was as favorable an instruction on this question as defendant could properly demand. 4 Sutherland on Damages (4th Ed.), §§ 1111, 1136.
Counsel for defendant, in his brief and in his oral argument before this court, vigorously asserts that the judgment in this case operates, and, if affirmed, will continue to operate, as a gross miscarriage of justice. It is pointed out that the trial occurred shortly after the return of the plaintiff from participation in the war and at a time when the public appreciation of and sympathy for our returned soldiers was running high, and it is alleged that this feeling finds expression in the verdict of the jury. We may say, in passing upon this question, that the contract claimed by plaintiff is, certainly, a very unusual one. It is, however, supported by substantial testimony and the jury believed his claims.- It is worthy of note, too, that the learned circuit judge declined to set aside the verdict upon the ground that it was against the great weight of the testimony. While it is possible,
The judgment is affirmed.