Fowler v. Hoffman

Decision Date26 January 1875
Citation31 Mich. 215
CourtMichigan Supreme Court
PartiesSmith W. Fowler v. Richard Hoffman

Heard January 13, 1875; January 14, 1875.

Error to Manistee Circuit.

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

Fowler & Harley and C. I. Walker, for plaintiff in error.

Ramsdell & Benedict and B. M. Cutcheon, for defendant in error.

OPINION

Cooley J.:

This was an action of replevin brought by Fowler as mortgagee, for the presses and material of the Manistee Times printing office and paper, which had been sold by the plaintiff to Hoffman and two others, and by the latter mortgaged for the purchase price. The mortgage contemplated possession of the property by the mortgagors until breach of condition, and, besides securing the notes given on the purchase, it contained a condition that the mortgagors should keep the property insured for Fowler's benefit, "and in all things perform and do according to the terms of an agreement" of even date, and it provided for a foreclosure of the mortgage by taking possession and making sale of the property, if default should be made. Fowler claimed that payments had not been made as agreed; that the property had not been kept insured; and that in several particulars the terms of the agreement referred to in the mortgage had not been observed. On the trial this agreement was not produced, but evidence was given that it had accidentally been destroyed by fire, and secondary evidence was offered of the contents. This consisted in the main of what the plaintiff claimed was a copy; but this was made from another paper which was admitted not to be the original, and which was not shown to have been compared with the original. The court rejected this paper, but allowed the plaintiff to go on and state the contents of the agreement from his recollection, which he testified was very clear and distinct, and which appears by his statement to have enabled him to state the contents verbatim. One of its conditions was that Fowler was to have the full and free use of one half column of the Times during the term of five years, for advertising purposes and the publication of reading matter; and another that the mortgagors would not use the columns of the paper, or permit them to be used, to publish matter detrimental to Fowler, his reputation or business. Fowler claimed that these provisions were violated by the publication of several articles disrespectful of himself, and by the refusal to publish a couple of items which he had sent for insertion. One of these items purported to be taken from a previous issue of the paper, and referred to Fowler as having "died politically;" and the other, which was designed to follow it immediately in the paper, professed to consist of the recital of proceedings of a public meeting at which the publisher of the paper was pronounced unworthy the confidence or esteem of the people. The court rejected the evidence of these publications and refusals to publish, as irrelevant. Regarding insurance, the condition of the agreement was that the mortgagors should keep the property insured in some good and safe company "for the full amount due" Fowler, and for his benefit, until the whole amount of the purchase price was paid. Evidence was given from which it might be claimed that the mortgagors did not keep the property insured, and that Fowler caused insurance to be effected at his own cost. It being disputed whether any thing was overdue on the mortgage, the judge instructed the jury that the agreement to insure for the full amount due, must be understood only as referring to any amount that had become presently payable, and not to the whole amount secured by the mortgage and remaining unpaid.

The plaintiff requested the judge to submit to the jury thirty-one distinct questions of fact, some of which were not warranted by any evidence in the case, and some on points not contested. The most of these the judge refused to submit, but he did submit those the answers to which could have any conclusive effect, and the jury returned, in response to them, in substance, that nothing was due on the mortgage when the property was taken upon it, though it was not yet satisfied in full; that the mortgagors failed to keep the mortgaged property insured for Fowler's benefit, and that the officer took upon the writ property to the amount of $ 1,024 not covered by it, and, as we understand them to mean, not included in the mortgage.

The plaintiff also presented thirty-eight different requests for instructions to the jury on the law. Some of these were and some were not relevant to the case, and a distinct affirmative or negative answer to each must have left the jury in a state of utter doubt and uncertainty regarding the rules that should govern their conclusions. The judge rejected the whole, but proceeded to give a connected charge covering the whole case, and responding to all the plaintiff's requests which were relevant or which were based on any evidence. Among other things the judge instructed the jury that if they should find no continuing breach in the condition of the mortgage at the time suit was brought, they should find for the defendant the whole value of the property replevied, which they did.

This statement will be sufficient to present the legal questions arising upon the record.

I. Whether the plaintiff was injured by the ruling of the court refusing to receive in evidence what was claimed to be a copy of the agreement referred to in the mortgage, is not made very clear by the record. A copy of what is said to be a copy of an original with which it was never compared, and from which it is not shown to have been taken, can have no claims to admission as secondary evidence. Where, however, a witness, from his own recollection of the contents of an original, can testify that it is a copy, it should be received. The weight of pertinent evidence on that point would be for the jury. The record is a little blind, and perhaps Mr. Fowler's evidence went to that extent. At any rate, he appears to have been allowed to state fully to the jury the contents of the agreement, probably in the very language of the supposed copy.

II. The judge was clearly in error in holding that the stipulation for insurance, when speaking of the "amount due," meant not the whole sum secured, but only the amount that had become presently payable; in other words, the amount overdue. We cannot suppose such to have been the understanding of the parties. The word "due" is often used in business transactions as synonymous with "owing" or "remaining unpaid," and no reasonable doubt can exist that it was so used here. The need of insurance to protect the mortgagee would be at least as great before as after the payments fell due; and the mortgagee would not be likely to leave the property uninsured when he could not protect himself by taking possession, and at the same time demand insurance when he had without it very...

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