Cleveland v. Miller

• Decision Date: 22 December 1892
• Court: Michigan Supreme Court
• Parties: CLEVELAND v. MILLER.

53 N.W. 961

94 Mich. 97

CLEVELAND v. MILLER.

Supreme Court of Michigan

December 22, 1892

Error to circuit court, Lenawee county; VICTOR H. LANE, Judge.

Action by William H. Cleveland against Charles R. Miller. Plaintiff had judgment, and defendant brings error. Affirmed.

Salsbury & O'Mealey, for appellant.

Watts, Bean & Smith, for appellee.

MONTGOMERY J.

The plaintiff brought an action for money had and received. The defendant pleaded the general issue, with notice of set-off and furnished a bill of particulars of his set-off which limited his demand to a claim for certain services amounting to $190.50. On the trial the plaintiff showed that the defendant received into his hands moneys realized from the sale of property belonging to the plaintiff amounting to $5,399.52. The defendant testified that he received this money as the agent of plaintiff, and that he was only authorized to pay it out on plaintiff's direction. It appeared that this money was all paid out for plaintiff's benefit, except $573, and that among other items of money paid out by him was one of $1,500, paid to one Beckel for a mortgage he held on property owned by plaintiff. It is contended that the defendant should have been allowed for this item the full face of the mortgage, which was obtained at a discount. The jury found the facts to be as testified to by plaintiff, and that the defendant undertook to buy this mortgage on the best terms he could obtain, and gave judgment for plaintiff. The defendant's counsel claims that, as it appears that the defendant was acting as Beckel's attorney, such an undertaking on his part was against public policy and void, and that therefore it follows that the plaintiff should have charged against him the full amount of the mortgage. This contention cannot prevail. It is undoubtedly against public policy for an attorney of one party to engage to perform a service for an opposing interest, but when an attorney interposes as a defense his own violation of this rule the court cannot be expected to reframe an issue for his protection. This mortgage is not among his items of set-off, and while it was competent for him to prove the amount of money actually paid out for the plaintiff, and by his direction, as a payment on the plaintiff's demand, he cannot go beyond this on these pleadings, and recover the amount of this mortgage. Furthermore, if this transaction is as he claims it, it is...