17 Mich. 273 (Mich. 1868), Dudgeon v. Haggart

Citation:17 Mich. 273
Opinion Judge:Graves J.:
Party Name:John Dudgeon v. Allen Haggart
Attorney:Stuart, Edwards & May, and H. F. Severens, for plaintiff in error: May & Buck, attorneys for defendant in error, furnished no brief.
Case Date:October 07, 1868
Court:Supreme Court of Michigan

Page 273

17 Mich. 273 (Mich. 1868)

John Dudgeon

v.

Allen Haggart

Supreme Court of Michigan

October 7, 1868

Heard July 11, 1868

Page 274

Error to Kalamazoo circuit.

This was an action by plaintiff to recover a sum of money paid by him as surety upon a note.

The declaration contained a special count and the common counts.

The defendant pleaded the general issue, and gave notice of special matter.

A verdict was rendered for the defendant.

The facts are stated in the opinion.

Judgment reversed, with costs, and a new trial ordered.

Stuart, Edwards & May, and H. F. Severens, for plaintiff in error:

1. Misapprehension of the court as to a material fact, and the direction to the jury accordingly, are said to be unmistakable grounds for a reversal of the judgment: 1 Bailey 482, 235; 1 Rep. Const. Ct., 200.

2. A receipt purporting to be a payment in full, together with a conditional assignment of a certain claim, was offered in evidence, and submitted by the court to the jury for their consideration. This was error. It was a matter of law, and for the court and not for the jury: 2 Ind. 617; 4 Id. 154, 248; 2 Pars. on Cont., 4, and note b.

Where there are two instruments relating to the same transaction, they should be construed together: 4 Blackf. 341; 1 Ind. 267; 11 Id. 236; 13 Id. 496; Walk. Ch., 56, 206, 361; 1 Mich. 202, 421; 2 Doug. 16.

3. It was error to instruct the jury that as matter of law the parties intended the assignment as payment, and not as collateral security

These papers construed separately or together do not denote payment. They mean security for the sum of $ 269, and nothing more.

4. The giving and accepting of a smaller sum of money in payment or satisfaction of a larger one due, is not a valid discharge, and can not be pleaded either as payment or as an accord and satisfaction: 9 Johns. 332; 2 Id. 448; 27 Me. 370, 378; 20 Conn. 559; 2 Strobhart 203; 5 Gill. 218; 6 Cush. 150; 3 Barb. Ch. Rep., 621; 15 Ind. 371.

5. It is error to give contradictory instructions to a jury; also an uncertain charge: 12 Vt. 60; 1 Met. (Ky.), 83; 15 Gratt. 230.

a. As is implied in the language of the court, we requested the court to construe the writings, and to say that they imported security and not payment. Now, if we were in error in assuming that it was the business of the court to construe these writings, and it was a question for the jury, the court committed error in charging, as it did, that the language of the papers imported payment, and not security.

If, in response to a request which is erroneous, the court should charge erroneously upon that point, the party injured may well complain: 32 Ill. 281.

b. If the charge means anything, the jury were permitted to inspect and examine these writings to see if they imported full payment and satisfaction, and at the same time the jury was told that these writings meant payment and not security.

May & Buck, attorneys for defendant in error, furnished no brief.

OPINION

Page 275

Graves J.:

Dudgeon sued Haggart, in the court below, to recover an amount paid by him as surety for Haggart, upon a note of $ 1,300, to Woodbury, Potter and Wood. The declaration embraced the common counts in assumpsit, and a special count containing the facts connected with the undertaking.

The damages were laid at $ 1,000. The general issue was pleaded, accompanied by a notice of set-off, and that the defendant would give in evidence on the trial under the issue, that on or about the 10th of May, 1865, the defendant, to secure the plaintiff the payment of $ 269, or that portion of it not therefore or otherwise paid or secured, did, in writing, sell and assign to the plaintiff the claim for $ 825, then...

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