Atlas Mining Co. v. Johnston

• Decision Date: 02 May 1871
• Citation: 23 Mich. 36
• Court: Michigan Supreme Court
• Parties: The Atlas Mining Co. v. James R. Johnston, Guardian, etc

23 Mich. 36

The Atlas Mining Co. v. James R. Johnston, Guardian, etc

Supreme Court of Michigan

May 2, 1871

Heard April 19, 1871

Error to Houghton circuit.

The facts are stated in the opinion.

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

Hubbell & Chadbourne and Newberry, Pond & Brown, for plaintiff in error.

D. H Ball and C. I. Walker, for defendant in error.

OPINION

Christiancy J.:

This was an action of assumpsit, brought by Johnston, as guardian of the minor heirs of Polly Vaughn, deceased, against the mining company, to recover the purchase price of certain lands, alleged in the declaration to have been bid off by the defendant at a public sale made by the plaintiff as such guardian, in pursuance of a license from the judge of probate for Keweenaw county (in the Upper Peninsula), for the sum of twenty thousand five hundred dollars, payable, according to the conditions of the sale, six thousand dollars on the delivery of a deed, and the balance in three years. The suit was not commenced till the three years had expired.

The plaintiff below recovered a verdict and judgment, in the circuit court for Keweenaw county, for $ 27,675, and the defendant brings the case to this court upon a writ of error and bill of exceptions.

The first, second and third errors assigned are upon the setting aside of two jurors by the court, and the excusing of a third.

The twelve jurors first drawn from the box being put upon their oaths, touching their competency as jurors in the cause, the plaintiff's counsel asked one of them whether he was a brother of the defendant's agent, to which he replied in the affirmative; and being then further asked by the plaintiff's counsel whether he had talked with his brother about the case, and having answered, "Last night I spoke to him about it, but he would give me no answer," whereupon, plaintiff's counsel interposing no objection, the court nevertheless excused or set him aside; and another juror being drawn, and called to take his place, was asked by plaintiff's counsel whether he had any bias or prejudice in favor of either party, to which he replied, "I have formed some opinion;" the court, without any objection from either party, set him aside.

Another juror having been drawn, and called in the place of the latter, before taking his seat stated to the court that he did not understand the English language; and the court remarking, that from previous intercourse with said juror, he knew that he was deaf, and did not sufficiently understand the English language, excused said juror.

No challenge or objection was taken to any of said jurors by either party. Defendant's counsel, however, claimed the right to examine them touching their competency, but was prevented by the court in the manner above stated, and confined to exceptions to the proceeding. Another juror having been drawn, and called to take the place of the excused jurors, defendant's counsel was asked by the court whether he was satisfied with the jury; to which he replied, "we have no questions to ask the jury."

The counsel for the plaintiff in error (defendant below) insists that defendant was entitled, as a matter of right, to have the case tried by the twelve jurors whose names were first drawn from the box, and not challenged peremptorily, or challenged for sufficient cause and the challenge sustained; and that there was here not only no challenge, but no sufficient ground for a challenge for cause. He relies upon section 4392 Compiled Laws, which provides that "the twelve first persons who shall appear as their names are drawn and called, and shall be approved as indifferent between the parties, shall be sworn, and shall be the jury to try the cause."

This construction of the statute, we are satisfied cannot be maintained. It would take from the court the power to excuse a juror from sitting in any particular cause, if competent and indifferent, however urgent the cause, but he could only be excused for the term under sections 4389 and 4395.

We think, within the fair meaning of this statute, when compared with the other provisions in reference to jurors and read in the light of the decisions, that the first two jurors may properly be said not to have been approved as indifferent between the parties. And though it would be ground of error for the court to admit a juror who is challenged and ought to have been rejected, it is no ground of error for the court to be more cautious and strict in securing an impartial jury than the law actually required; and that for this purpose the court may very properly reject a juror on a ground which would not be strictly sufficient to sustain the challenge for cause; or in other words when the refusal to sustain the challenge would not constitute error. So long as an impartial jury is obtained, neither party has a right to complain of this course by the court; and especially when, as in this case, no objection was taken by either party to the competency or impartiality of the jury which was obtained. We think the court has a discretion in this matter to the extent above explained, and that this discretion was very properly exercised in the present case; and as to the juror who was excused because he did not understand the language, we think it would have been highly improper, to have allowed him to sit in the cause though unchallenged.

Evidence was given on the trial, tending to show, that the plaintiff, as guardian, had been duly licensed to make a sale of the land, and that in pursuance of such license and upon due notice, he sold the same at public auction October 31, 1864, to one Sanderson, for $ 20,500, of which, by the terms proclaimed at the sale, $ 6,000 were to be paid down and the balance in five years; that one Joseph Paul was at that time, and up to the time of the trial, the agent of the defendant company; that he was by said company authorized to bid, and did bid at the sale, only the sum of $ 20,100 on behalf of said company; that his authority and this limitation of it was communicated to the plaintiff on the same day of, but after, the sale; that upon examining the statute it was found to require the payment of one-fourth down, and the balance within three years, which being different from the terms on which the sale was made, Sanderson refused to take the property.

Paul not professing, so far as appears, to have authority to bind the company (defendant), but believing that it would be for their interest to take the property at the sum bid by Sanderson, and to pay the six thousand dollars down and the balance as the statute required; and that he could induce them to do so, about the 12th of November verbally agreed with the plaintiff and Sanderson to substitute the company for Sanderson as the purchaser, and that the sale should be thus reported by the plaintiff; and the report was so drawn up by the judge of probate with a knowledge of this arrangement, Sanderson, Paul and the plaintiff being present before the judge at the time. Plaintiff signed the report thus made, which was confirmed by the judge. In this report the company was stated to have been the purchaser at the public sale.

There was no evidence in the case tending to show any prior authority of Paul to purchase for the company at any higher price than twenty thousand one hundred dollars. The company, whose office seems to have been in Boston, declined to take the property under this arrangement, or to make payment. And as the main question in the case is whether there was any evidence tending to show that this arrangement made by Paul for the purchase in the name of the company was ratified by them, we set out, in addition to what has already been stated, all the evidence bearing upon this point.

The plaintiff, to prove such ratification, introduced a letter written by Paul to the secretary and treasurer of the company in Boston, of which the following is...