Eslow v. Mitchell

• Decision Date: 09 April 1873
• Citation: 26 Mich. 500
• Court: Michigan Supreme Court
• Parties: Champion Eslow and another v. Jay P. Mitchell

26 Mich. 500

Champion Eslow and another v. Jay P. Mitchell

Supreme Court of Michigan

April 9, 1873

Heard January 11, 1873

Error to Calhoun circuit.

Judgment affirmed, with costs.

Brown & Patterson, for plaintiffs in error.

Rienzi Loud, for defendant in error.

OPINION

Campbell, J.:

The plaintiffs in error, who were defendants below, held a chattel mortgage on certain articles used in a billiard saloon, given by one George W. Closson, in January, 1870, and falling due March 15, 1870. They were in possession of the chattels from a time not long after the date of the mortgage. There was evidence tending to show a sale and conveyance of the goods by the mortgagees, to one Teachout, in February 1870, before the mortgage matured. Some time before its maturity, Closson empowered one Lane as his agent, to pay the mortgage and get the property back, and dispose of it. Lane tendered the amount, on the day it became due, and the mortgagees did not accept the money, nor return the goods. Lane then sold the property to Mitchell, who made demand and on refusal brought trover.

The principal questions arise upon the effect of the tender, and of the sale to Teachout, and upon the validity of the transfer to Mitchell. Some further questions also arose on the trial, upon rulings on evidence.

To prove the power of attorney to Lane, evidence of its loss was given, and it was then made out by secondary evidence. Lane was allowed to show its contents from memory, and this was objected to on two grounds: first, because there was better evidence in the form of a copy, in the hands of Mitchell's counsel; and, second, because there was a subscribing witness who should have been sworn.

The supposed copy did not appear to have been compared by Lane, so that he could have identified it, and there is no rule of law that requires secondary evidence to be of one kind rather than another, where the writing is a private writing, and no counterpart is legally presumed or required to exist. If the evidence produced does not clearly show the tenor of the document, of course it fails; and if parties willfully keep back evidence in their possession, which might clear up a doubtful point, their conduct will have a tendency to injure their case. But there is no doubt private papers may be made out by parol secondary evidence, and the objection to it, if there be any, is one of weight and not of competency. And in this case, for any thing appearing, it may have been the best attainable, and the most satisfactory.

There is no force in the objection that the subscribing witness (if there was one) was not produced. Such witnesses are required and expected to establish the genuineness of their own, and of the party's signature, to an original paper. But they are not required or supposed to know the contents of the documents they attest, and are no more likely to be able to give secondary evidence of their purport, than any other persons. They are expected to know their own handwriting, and to say whether the paper appearing to bear it, was in fact so verified, but not whether they ever attested a paper which they have no means of identifying. It is not usual for such witnesses to charge their memories with the contents of all the papers they have seen executed.

It was also objected, that the money tendered was borrowed for the occasion, and that the tender was not kept good. But it cannot concern a creditor, from whom or on what terms a debtor gets the money to pay him, if the money itself is ready and available. And while a tender does not satisfy a debt, unless kept good, yet it discharges a lien upon property at once, when seasonably made and not accepted: Moynahan v. Moore, 9 Mich. 9; Caruthers v. Humphrey, 12 Mich. 270; Van Husan v. Kanouse, 13 Mich. 303. In the present case the validity of the lien, and not the continuance of the debt, is the matter in issue.

It was also urged that the mortgagees could not be compelled to accept the tender from Lane, unless they had an opportunity of knowing his authority, which it is claimed was not given here. Upon the facts there was some conflict of testimony, but the charge of the court was very strong in requiring that they should have a reasonable opportunity to see the paper, and learn the extent of the authority; and there was evidence which tended to show they had this opportunity, which we must assume was satisfactory to the jury.

Some questions were raised upon a deposition taken in another county...