Macomb v. Wilkinson

• Decision Date: 05 December 1890
• Citation: 83 Mich. 486,47 N.W. 336
• Court: Michigan Supreme Court
• Parties: MACOMB v. WILKINSON.

47 N.W. 336

83 Mich. 486

MACOMB v. WILKINSON.

Supreme Court of Michigan

December 5, 1890

Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

E. S. Clarkson, for appellant.

Robert T. Gray, for appellee.

CAHILL J.

This suit involves the right of the defendant to show that a part of the consideration of a certain note given by him to R. P Toms in his life-time consisted of illegal attorney's fees charged in the foreclosure of certain mortgages in the hands of Mr. Toms for foreclosure, and to have the amount of such illegal attorney fees deducted from said note. In January, 1888, John N. Macomb brought suit in the Wayne circuit against the defendant upon a promissory note, a copy of which appears in the record as follows: "$1,500. Detroit, November 3, 1876. Sixty days after date, I promise to pay to the order of R. P. Toms fifteen hundred dollars at First National Bank, Detroit, value received, with ten per cent. interest. [Signed] A. H. WILKINSON. [Indorsed:] I hereby assign and transfer the within note to John N. Macomb of Washington, D. C. [Signed] JULIA F. OWEN Administratrix of the Estate of S. Caroline Toms." In March, 1889, John N. Macomb having died, his death was suggested upon the record, and an order was made allowing his executrix, Nannie R. Macomb, to prosecute the suit. The defendant pleaded the general issue, accompanied by the following notice: "Take notice that, upon the trial of said cause, the said defendant will show and give in evidence that Robert P. Toms, the payee named in the note, a copy of which is given in the declaration in this cause, was attorney for one William H. Baxter in the foreclosure of two certain mortgages against one Frederick Schmidt; that this deponent in order to protect his interest in the land included in said foreclosure, was compelled to give said note, and that said note includes about seven hundred dollars of attorney's and solicitor's fees, which were not authorized by law, and that such fees, and the amount thereof, should be deducted from said note at the date thereof, and the payments credited upon the note, so reduced in amount, as partial payments thereof. E. S. CLARKSON, Atty. for Deft. To William J. Gray, Atty. for Plff. Dated February 23, 1889." The case came on for trial before the Hon. CORNELIUS J. REILLY, Circuit Judge, with a jury. The following facts were admitted on the record: "That Robert P. Toms died testate, March 10, 1884, bequeathing and devising all his estate to his wife, Sarah Caroline Toms; that Sarah Caroline Toms died intestate, June 17, 1888, leaving Julia Francis Owen, her sister, as her sole heir; that Julia F. Owen was duly appointed administratrix of the estate of Sarah Caroline Toms, and qualified as such administratrix." The plaintiff put in evidence proof of the hand-writing of Julia F. Owen, whose assignment of the note to John A. Macomb appears on the back of said note. Thereupon the note was admitted in evidence. The plaintiff also put in evidence tending to show that the interest had been paid on said note by defendant up to May 3, 1887. Mr. William J. Gray testified on behalf of the plaintiff that the note had come into his hands at the death of Robert P.

Toms, by reason of his having been at that time in Mr. Toms' law-office. That he had made demand on the defendant for the payment of the note. Defendant had paid his interest at various times up to May 3, 1887. That he had made demand on him for payment of principal and interest. That defendant had at various times promised to pay principal and interest. On two or three occasions defendant asked for delay. Witness told him that the note belonged to Col. Macomb, and that the latter was anxious to have his money, and close up matters in Detroit. He wanted the principal and interest of this note paid. That defendant asked for delay, and promised on one or two occasions, if witness would delay suit, he would pay principal and interest. That, on the strength of defendant's promises to pay, witness delayed suit, and gave defendant more time than he asked for. Plaintiff also offered in evidence certain entries in what purported to be the day-book kept by R. P. Toms in his life-time, and Mr. Gray was asked the following questions: "Question. Will you look at the entry there, Jan. 2, 1877? In whose handwriting is that entry? Mr. Prentis. I object to that as incompetent and immaterial. Mr. Gray. I only wish to show this entry in Mr. Toms' writing, showing payment and transfer of this note again to John N. Macomb. Court. I think I will allow you to show it. Mr. Prentis. I object to his proving the entries in any book in this way. It is not competent to prove the entries in a man's day-book in any such manner as this. Court. Note exception. Answer. This entry is in the handwriting of Robert P. Toms: 'John N. Macomb, debtor, to loan A. H. Wilkinson $1,525, by check No 1,514. $1,525.' That note was afterwards laid in box belonging to Col. Macomb, and, after Mr. Toms' death, I informed Judge Wilkinson that the note belonged to Col. Macomb." Error is assigned upon the admission of this entry from Mr. Toms' book. The purpose of it was to show by additional evidence that the note belonged to Mr. Macomb. As the proof was already ample on that point, and was undisputed, the entry in the day-book was scarcely necessary. But it was competent. The day-book was authenticated as one kept by Mr. Toms in his life-time; the entry was one of many made by him in the regular course of business, and comes within a familiar rule of evidence. Price v. Earl of Torrington, 1 Smith, Lead. Cas. 563, and notes.

By way of defense to the note, it is claimed that it included six separate attorneys' and solicitors' fees, charged on six separate foreclosures, for installments of interest due on two mortgages given by one Frederick Schmidt, of Detroit to William H. Baxter, of Vermont. Defendant, Mr. Wilkinson, being an attorney at law, had in his hands for collection a claim against Schmidt, which he put in judgment, and levied upon the property covered by the Baxter mortgages. At the time this levy was made, two foreclosure suits were pending in the Wayne circuit court in chancery, to collect installments of interest due in the fall of 1874, on each of these mortgages. The defendant claims that to protect his levy he found it necessary to purchase the premises on these foreclosure sales which took place December 9, 1875. The amount for which the premises were...