Knickerbocker v. Wilcox
| Decision Date | 14 November 1890 |
| Citation | 47 N.W. 123,83 Mich. 200 |
| Court | Michigan Supreme Court |
| Parties | KNICKERBOCKER v. WILCOX. |
Error to circuit court, St. Joseph county; NOAH P. LOVERIDGE Judge.
Howell, Carr & Barnard, for appellant.
S. M. Constantine, for appellee.
This was an action of assumpsit brought to recover upon a written undertaking hereafter shown, to indemnify the plaintiff against all harm by reason of his signing a replevin bond with Bellman & Handy in a suit brought by them against Naomi Warner, at Elkhart, Ind. The following is the undertaking sued on: Defense pleaded the general issue, and gave notice that it would be shown on the trial that the defendant did not, in any way, individually enter into the contract alleged in plaintiff's declaration; and also that, if he ever did, either individually, personally, or as the agent or in behalf of another, enter into such contract, the conditions of same had been fully satisfied and performed. It was shown by the plaintiff that, on the strength of defendant's letter, he signed the replevin bond, as requested as surety for Bellman & Handy, and that the same was delivered to the sheriff, who thereupon delivered the property taken under the writ to Bellman & Handy. That the replevin suit came on for trial in the Elkhart circuit court, and Bellman & Handy were defeated. The defendant elected to take a judgment for a return of the property. To satisfy such judgment the same was returned to her. Nevertheless, she insisted that certain goods were not returned, and that other goods were returned in a damaged condition, and she brought suit upon the replevin bond in the Elkhart circuit court against Bellman & Handy, as principals, and Knickerbocker, as surety, to recover such damages. Bellman & Handy and Knickerbocker each employed Mr. Vanfleet as attorney to defend that action. There is no legal evidence in the record that Mr. Wilcox had notice of this suit or opportunity to defend it. Upon the trial of this suit on the replevin bond, Mrs. Warner, the plaintiff, recovered a verdict for $107.50, and costs. The court, on motion of defendants, granted a new trial, and, when the same was about to come on for a second trial, Mr. Vanfleet being of the opinion that it would be cheaper and better for his clients to compromise the suit than to try it, took the responsibility to effect a settlement, and for that purpose consented that Mrs. Warner might take a judgment against his clients for $50, and costs of the first trial. At this time, neither Bellman, Handy, nor Knickerbocker, was present in court, or had any knowledge of such proposed settlement. But Bellman & Handy were at once notified of the same, and, upon their objecting to such judgment, were informed by their attorney, Mr. Vanfleet, that Mrs. Warner was also dissatisfied, and that her attorney would consent to set aside the judgment and have a new trial, and that they could employ other counsel if they wished. This offer was not accepted, and the judgment of $50, and costs, was allowed to stand, and the plaintiff Knickerbocker paid the same, on January 18, 1888, amounting in all to $133.50. Afterwards, Mr. Vanfleet presented a bill to Bellman & Handy for his services in the defense of the suit on the replevin bond. They refused to pay it, and he commenced suit in the Elkhart circuit court against Mr. Knickerbocker for the same bill. Thereupon Mr. Knickerbocker notified Mr. Wilcox personally of the fact that he had been sued, and that it was necessary for him to appear and defend. To this notice Mr. Wilcox paid no attention. In that suit a judgment was recovered by Mr. Vanfleet against Mr. Knickerbocker, for $150 damages, and $10.50 costs, which Mr. Knickerbocker afterwards paid. After the payment of these two judgments, Mr. Knickerbocker called upon Mr. Wilcox to make good his agreement and save him harmless by reason thereof. This Mr. Wilcox refused to do, and this action was brought. Upon the trial the plaintiff offered in evidence the letter written by Mr. Wilcox to him, October 11, 1886, upon the strength of which he claimed to have signed the replevin bond. This was objected to by defendant, upon the ground that it was not the undertaking of the defendant, but it appeared upon its face to be the undertaking of the Three Rivers National Bank, of which Mr. Wilcox was cashier. The objection was overruled, and the letter admitted. Plaintiff also offered, in evidence, transcripts of the two judgments rendered against him in the Elkhart circuit court, and which he claimed he had been compelled to pay. These were objected to by the defendant upon the ground that it did not appear from any evidence in the case that the plaintiff had signed any replevin bond, as requested by defendant; and that it was incumbent upon the plaintiff to show the original of such bond; and that the plaintiff had, in fact, executed the same. The original of the replevin bond was not produced nor offered in evidence upon the trial. But what purported to be a copy of such bond, found in the transcript of the suit brought on the replevin bond, was offered together with evidence by Mr. Knickerbocker and Mr. Vanfleet that the same was a true copy of the original bond. It was not shown that the original bond was lost, nor was the failure to produce it accounted for, otherwise than by evidence that it was delivered originally to the sheriff in Indiana, and sued on by Mrs. Warner in that state. The defendant was allowed, on cross-examination of plaintiff's witnesses, to...
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