Ferguson v. Hemingway

• Decision Date: 15 January 1878
• Citation: 38 Mich. 159
• Court: Michigan Supreme Court
• Parties: Peter Ferguson v. William Hemingway

38 Mich. 159

Peter Ferguson v. William Hemingway

Supreme Court of Michigan

January 15, 1878

Submitted January 10, 1878

Error to Lapeer.

Assumpsit. The facts are in the opinion.

Judgment reversed with costs, and a new trial ordered.

M. V & R. A. Montgomery for plaintiff in error. If written evidence is in defendant's hands, he must be notified to produce it before parol proof can be given of its contents, 1 Greenl. Ev., § 560, but if a third party has it he should be served with a subpoena duces tecum, or proof should be given of its loss, Id., § 88; Eslow v Mitchell, 26 Mich. 502.

William Hemingway in person urged that if one to whom a letter had been written denied receiving it, the neglect to notify him to produce it was immaterial, and cited Stewart v People, 23 Mich. 72; Witter v. Latham, 12 Conn. 399; Waller v. School District, 22 Conn. 326.

OPINION

Cooley, J.

Hemingway sued Ferguson to recover the value of professional services as counsellor at law. There was no dispute that the services had been performed, but Ferguson relied upon an understanding that they were to be rendered for a certain fixed sum, while Hemingway claimed a much larger sum on a quantum meruit.

To prove the understanding relied upon, Ferguson called Charles Draper, Esq., who testified that at Ferguson's request he wrote a letter to Hemingway stating Ferguson's desire to employ him to perform the services specified, but that he could only pay forty dollars therefor. To meet this showing Hemingway testified that on the receipt of Draper's letter he replied to it by mail that he could not accept the proposition, but that he would perform the services for what they were worth. Ferguson afterwards visited Hemingway, and the services were performed, but nothing appears to have been said between them concerning the Draper letter.

Hemingway's evidence, that he had replied to Draper's letter, and what the reply was, was objected to by defendant because no notice had been given to produce it. The objection was overruled. The ruling was manifestly in violation of the familiar rule, which excludes secondary evidence until the proper effort has been made to secure the primary and better evidence. It is now urged, however, that the necessity of notice to produce the letter to Draper was obviated by the evidence of Draper that Hemingway did not notify him that he declined Ferguson's offer, and that he had no...