Johnson v. Continental Ins. Co.

• Decision Date: 11 June 1878
• Citation: 39 Mich. 33
• Court: Michigan Supreme Court
• Parties: Abner C. Johnson et al. v. The Continental Insurance Company of the City of New York

39 Mich. 33

Abner C. Johnson et al. v. The Continental Insurance Company of the City of New York

Supreme Court of Michigan

June 11, 1878

Submitted June 5, 1878

Error to Genesee.

Assumpsit. Defendants bring error.

Judgment affirmed with costs.

Wisner & Johnson and A. C. Baldwin for plaintiffs in error. Special questions to the jury should be material and must be definitely answered. Comp. L., § 6026; Crane v Reeder, 25 Mich. 316; Harbaugh v. Cicott, 33 Mich. 241; Foster v. Gaffield, 34 Mich. 356.

Wm Newton and Ashley Pond for defendant in error.

OPINION

Graves, J.

The company sued in assumpsit to recover back of plaintiffs in error nearly $ 4000 paid them in February, 1873, upon their claim of loss under a policy of insurance the company had previously made to them on a dwelling house and personal effects contained in it. The declaration consisted of the common counts, and of a special count containing some explanation of the cause of action. The general issue being pleaded, the cause was tried before a jury who found for the company for the amount which had been paid with interest. Judgment was then entered by the court and the plaintiffs in error now ask a review of the proceedings upon writ of error and bill of exceptions.

First. The first charge of error complains of the special count in the declaration, which is said to be fatally defective for lack of precision and necessary facts. This objection might require us to consider the sufficiency of the count if the case in any manner depended upon it. But it does not. The cause of action relied upon is fully covered by the general count for money had and received, and hence the question made upon the special count is merely speculative. If found bad the result would not be changed. The point is therefore without importance and requires no further notice.

Second. When the company paid the insurance money to plaintiffs in error the latter gave the customary receipt and voucher, and this instrument had not been returned or offered to them previous to the suit. It was however produced in evidence at the trial. The plaintiffs in error claimed that the previous return or tender of this document was necessary to entitle the company to sue, and the omission of such return or tender is made a ground of error. The objection is without force.

The voucher was not a thing of intrinsic value which the plaintiffs in error had exchanged for the insurance money and might reasonably ask to have restored before being called on to pay back what had been received. It was given by the plaintiffs in error and received by the company, not as property or barter but exclusively as matter of evidence of the fact of payment, and the retention of it by the company to stand and serve as evidence in its hands was in exact accordance with the purpose for which it was made and given to the company.

Third. The charge is complained of. But the objections in argument are very general and seem to be based pretty much entirely...