Fosdick v. Vanarsdale
| Decision Date | 20 February 1889 |
| Citation | 41 N.W. 931,74 Mich. 302 |
| Court | Michigan Supreme Court |
| Parties | FOSDICK v. VANARSDALE ET AL. |
Error to circuit court, Kalamazoo county; BUCK, Judge.
This suit was brought to recover upon a promissory note dated at Alamo, Mich., June 7, 1886, for $110, payable seven months after its date, to plaintiff or bearer, at 10 per cent interest. The note was executed jointly and severally by the defendants as makers. The defense was that the note was made without any consideration to them, and was given for the sole purpose of procuring the release of one James Wheeler, who was in jail at Paw Paw upon a criminal charge, at the complaint of plaintiff; that the plaintiff obtained the note by fraud; and that he received it for the purpose of compounding a felony. The plaintiff had judgment upon the verdict of a jury in the circuit court for the county of Kalamazoo. It was shown upon the trial, without dispute, that at the time this note was executed the plaintiff gave up to Hannah Wheeler, who was a sister of James Wheeler, two notes that he then held against said James Wheeler. Prior to this time James Wheeler had been arrested on complaint of plaintiff, and bound over to the circuit court of Van Buren county for trial, upon a charge of obtaining the loan for which one of his notes was given by false pretenses. The defendants gave evidence tending to show that the note in suit was made and delivered upon the promise of plaintiff that he would not appear against James Wheeler and that he should be released from the charge against him. The plaintiff gave testimony upon his part tending to show that he made no such promise, and that all there was to the transaction was that he simply took this note in payment of the two he held against James Wheeler. The record shows that after the primary case of the plaintiff was closed, "V H. Lockwood proceeded to state the defendants' case to the jury, and during the opening proceeded to state the law governing the defendants' case, and upon which the defense was based; whereupon the counsel for the plaintiff interposed an objection, and the said court sustained the objection, stating that the law would come from the court in due time." This is made the first assignment of error in defendants' brief.
We are not able, from this meager statement in the record, to know whether error was committed or not by this action of the circuit judge. But counsel have the right in stating their case to the jury at the opening to briefly set forth what points of the law they rely upon, and the nature of the testimony they propose to introduce to support such points. It is true the law is to be given by the court; but, as it is not given in most cases until the testimony is ended, and the counsel have summed the same up in support of their case before the jury, the counsel have the right, both in opening the case to the jury, before the testimony to support their case is offered, and when closing the argument, after the testimony is in, to state to the jury that they claim the law to be thus and so, and that they shall request the court to so instruct them, and that they will adduce such an such testimony to support their claim under the law in the first instance, or at the close to state that the evidence in the case, under the law as they shall claim it to be, establishes their right to a verdict at the hands of the jury. The counsel have no right to read law to the jury, or to usurp the province of the court in any way in this respect, but they have the undoubted right to state so much of the law, as they claim it to be, as may enable them to lay before the jury an intelligent idea of the force, effect, and bearing of the testimony upon their case, either before or after said testimony is in the case.
Several of the witnesses for the defense, especially the defendants themselves, were asked what was their understanding of the transaction, and "what was your understanding when you signed the note?" This was properly excluded. The transaction itself-what was said and done by the parties-was to be laid before the jury, and it was for them to determine what the arrangement and the understanding were.
The plaintiff offered in evidence the files in the case against James Wheeler, to show that the prosecuting attorney discontinued the case,-to show the reason why the case was discontinued. The court said: ...
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