Hitchcock v. Davis

• Decision Date: 09 October 1891
• Citation: 87 Mich. 629,49 N.W. 912
• Court: Michigan Supreme Court
• Parties: HITCHCOCK v. DAVIS et al.

49 N.W. 912

87 Mich. 629

HITCHCOCK v. DAVIS et al.

Supreme Court of Michigan

October 9, 1891

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Action on a contract by Frederick H. Hitchcock, as assignee of Theodore Romeyn, against Samuel H. Davis, David W. Davis, and Thomas B. Rayl. There was a verdict and judgment for defendants, and plaintiff brings error. Reversed.

Charles Flowers, for appellant.

Corliss, Andrus & Leete, for appellees.

MORSE J.

The plaintiff, as assignee of Theodore Romeyn deceased, brings suit in the Wayne circuit court based upon the following contract: "Contract. It is agreed between Samuel H. Davis, Thomas B. Rayl, and David W. Davis, of the first part, (jointly and severally,) and Theodore Romeyn, of the second part, as follows: First. The contracts of the second September, 1879, and all obligations resting upon or springing from them, are relinquished. Second. The said first parties, having settled their difference with George H. Hammond, of Detroit, and he having agreed to pay to them certain sums on conditions and at the times specified in a certain contract between them and him dated the 18th September, 1880, the said first parties (jointly and severally) agree with said Romeyn to pay to him, for value received, one-fourth part of whatever said Hammond shall pay to them, being twenty thousand dollars in hand, and ten thousand dollars when the validity of certain patents for refrigerator-cars shall be established by the judgment or decree of the circuit court of the United States for the first circuit of Boston Massachusetts, as is more fully set forth in the agreements between the parties of the first part hereto and said Hammond. Whatever said first parties may receive from said Hammond for damages recovered in his name against the infringers of said patents for preserving and transporting meats and fish and other perishable articles shall be divided equally with said Romeyn. Said Romeyn, on his part, agrees to give his professional services, including advice and the trial of matters in court, in any suits or other proceedings, to establish the validity of said patents, or to recover damages for their infringement, without any charge against the parties of the first part or said Hammond, but he is not bound to leave for such purposes the city of Detroit. The patents referred to are those of the Davis refrigerator boxes and cars dated 16th June, 1868, to William Davis, and reissued, on 15th September, to him jointly with Samuel H. Davis and Thomas B. Rayl, and the patent to David W. Davis for improvement in refrigerators, number 220,915, dated on the 28th October, 1879. [Signed] THEODORE ROMEYN. [Signed] S.E. DAVIS, by His Attorney in Fact, THOMAS B. RAYL. THOMAS B. RAYL. DAVID W. DAVIS;" and claiming under it one-fourth of the judgment obtained by defendants against the estate of George H. Hammond in the Wayne circuit court, and affirmed in the supreme court, (see Davis v. Hammond, 75 Mich. 1, 42 N.W. 690;) the full amount of said judgment amounting to $15,819.

The defendants pleaded the general issue, and gave notice that they will prove a settlement with said Romeyn in his lifetime in full satisfaction and discharge of his claims under said contract; and (2) that he neglected and refused to give his professional services; that there was an entire want and failure of consideration on the part of said Romeyn for said contract. The defendants had verdict and judgment on a trial in the court below. No exception is taken to the admission or rejection of evidence, but a large number of errors are assigned upon the charge of the court to the jury.

1. It is contended by plaintiff's counsel that his case was prima facie established by showing the contract, and the payment to defendants of the judgment, which was based on the fact that Hammond settled the suit in the United States court at Boston referred to in the agreement sued upon. The agreement, in thus referring to the suit in Boston, also refers to an agreement between the defendants and Hammond. That agreement provided, among other things, that Hammond should pay the defendants $10,000 in case he should recover in the Boston suit, or should make a settlement of the matters in said suit without proceeding to a final decree. The judgment obtained by the defendants against the Hammond estate was grounded upon such settlement, which was established in their suit against the Hammond estate upon their contract with Hammond. The court instructed the jury that the burden of proof was upon the plaintiff to make out his case. The plaintiff's counsel insists that the burden of proof was upon the defendants to establish a settlement with Romeyn of his claim under this contract. This is true, as it was a matter strictly of defense, and must be shown by the defendants. But under the second defense, that Romeyn had violated his part of the contract by neglecting or refusing to perform the services agreed to be given in the contract, although this was made a matter of defense by the plea and notice of the defendants, still, as soon as any evidence was introduced tending to show such neglect or refusal, the burden of proof was upon the plaintiff to show that Romeyn performed his contract, or stood always willing and ready to do so. The court erred in not properly separating these two defenses, and applying the rule as to burden of proof to each of them.

The fourth request of plaintiff's counsel was as follows: "The evidence shows that the said Romeyn commenced a suit against the defendants in this case in the superior court of Detroit, which suit was settled and discontinued. The receipt offered in evidence purports to be a settlement of all matters embraced in that suit, and, unless said receipt expressly shows a settlement of matters other than those embraced in said suit, it cannot be construed to be a settlement of Mr. Romeyn's claim under this contract, there being no evidence in this case to show that his claim under this contract was embraced in that suit. The claim under said contract had not accrued at the time of the settlement and discontinuance of said suit, and did not accrue until the payment of the ten thousand dollars provided for in said contract, by the said Hammond or his representatives, namely, after final judgment was obtained against said Hammond or his estate in this court, and until said judgment was satisfied." The court stopped at the word "contract," and refused to give the balance of the request commencing, "There being no evidence in this case to show," etc. The receipt which was put in evidence, after being entitled in the cause, reads: "Received, Detroit, June 8, 1885, of Thomas B. Rayl and Samuel H. Davis, per C. I. Walker, their attorney, ninety-three ($93) dollars, in full of all claims in the above-entitled cause and of all accounts. They have also paid seven ($7) dollars towards the costs in said suit. Said suit is to be discontinued without costs to either party. [Sd.] THEODORE ROMEYN. By JAMES W. ROMEYN, His Attorney in Fact. June 8th, 1885. Received seven dollars for disbursements in above suit, and in settlement thereof, in addition to the above amount paid plaintiff in person. [Sd.] DICKINSON, THURBER & HOSMER, Plaintiff's Attorneys. June 11th, 1885."

Theodore Romeyn commenced the suit in which this receipt was given against these defendants February 26, 1885, filing his declaration in assumpsit for professional services. A bill of particulars of his demand was also filed, but could not be found on this trial. The declaration makes no reference to the contract upon which the present suit is based. It is admitted that Romeyn received his one-fourth of the $20,000. The plaintiff's counsel contends that the words, "and of all accounts," cannot refer to Romeyn's share or claim to a share of the $10,000, because at that time no money had been received by defendants from Hammond, and there seemed but little likelihood of anything being obtained from Hammond on account of the Boston suit. The suit in which defendants recovered this $10,000 and interest was not commenced until August 27, 1886, over a year after Romeyn's death, which occurred July 22, 1886; and, if it had been intended to settle this claim, the contract would have been referred to in the receipt. We think the receipt itself, without any other testimony, would hardly warrant a court or jury in finding that it settled this claim upon the contract. But there is some correspondence which is significant. August 25, 1884, Romeyn wrote to defendants the following letter: "Detroit, August 25, 1884. To David W. Davis and Samuel H. Davis and Thomas B. Rayl: I have an unsettled claim against you for legal services in the suit of David W. Davis, Samuel H. Davis, Thomas B. Rayl, and George H. Hammond against Minna Alpern, William B. Isbell, and Emma J. Merrill, in the Wayne circuit court. The suit which Mr. Hammond was prosecuting in the United States circuit court in Boston was dismissed for want of prosecution, and under such circumstances as would probably exempt Mr. Hammond from every liability upon his contract to pay $10,000, though Mr. Trowbridge and Mr. Kane, counsel for David W. Davis, do not concede this; as Hammond, by the terms of his contract, was only to pay in case he got judgment in the court in Boston, or if he 'should make settlement of the matters in said suit without proceeding to final decree.' Hammond's counsel here say that he was forced to buy out Mr. Isbell, to whom Alpern had made some conveyance, and that you, S. H. Davis and D. W. Davis, refused to pay what was necessary to pay Isbell, and that the suit in Boston was dismissed against the wishes and consent of Hammond and his counsel for want of prosecution, and that...