McDonald v. McKinnon

• Decision Date: 19 March 1895
• Citation: 62 N.W. 560,104 Mich. 428
• Court: Michigan Supreme Court
• Parties: MCDONALD v. MACKINNON.

62 N.W. 560

104 Mich. 428

MCDONALD v. MACKINNON.

Supreme Court of Michigan

March 19, 1895

Error to circuit court, Dickinson county; John W. Stone, Judge.

Action of trover by John McDonald against Donald C. Mackinnon for the value of certain mining stock. From a judgment for plaintiff defendant brings error. Reversed.

For former opinion, see 52 N.W. 303.

B. J. Brown (W. H. Webster, of counsel), for appellant.

E. E Osborn, for appellee.

GRANT J.

The principal question in this case was disposed of by the former decision (92 Mich. 254, 52 N.W. 303), and will not now be reviewed. A sufficient statement of the case will there be found. We have examined the former record, and find it almost identical with the present one. The principal question is again argued at great length. If, however, counsel desired a reargument of that question, they should have moved for a rehearing. Parties are entitled to a final decision of all questions raised upon the first appeal to this court, so that they may enter upon the second trial with all such questions res adjudicata.

1. It appeared upon the former trial, as well as upon this, that the defendant had sent all the stock of the mining company to the Commercial National Bank of Chicago, to be delivered to one Ettelsohn. Plaintiff's certificate of stock was sent will the rest, and he went to the bank, and indorsed it, whereupon it was delivered to Ettelsohn. It is contended by the defendant that this was done at plaintiff's request, for the purpose of securing Mr Ettelsohn as an indorser upon some promissory notes of plaintiff's, and that as a matter of fact this constituted an actual delivery of stock. Plaintiff gave an entirely different version of this transaction, denying the testimony of both Ettelsohn and defendant. The conflicting testimony raised a question of fact, which was properly left to the jury to determine. The court instructed the jury that if they found that the stock was delivered to plaintiff at Chicago, and that he had, before that time, demanded possession of defendant, and was refused, and that he had shown himself entitled to it under the terms of his contract, then he was entitled to recover as damages the difference between the value of the stock when demanded and when delivered. The court also instructed them that, if he then obtained control of the stock, it constituted a delivery. We think the charge was correct in view of the special count in the declaration alleging damages for failure to deliver the stock on demand.

2. It is urged that the court erred in instructing the jury as follows: "If you find a conversion of this stock by MacKinnon,-and by 'conversion' I mean, if you find that the plaintiff was entitled to it, and demanded it, and that the defendant declined and refused to deliver it, that would make it a conversion,-if you find an unlawful conversion of his stock by Mackinnon, and that the plaintiff never got possession of it, never received possession of it down to this time, then you should give the plaintiff, as damages, the value of the stock at the time of such conversion, with interest to date at six per cent. per annum." The precise claim is that the demand and refusal did not constitute a conversion, but were only evidence of a conversion; and in support of this is cited Daggett v. Davis, 53 Mich. 35, 18 N.W. 548. The language of that case must be construed with reference to the facts. The defendant was the president of the corporation. Plaintiff had been its secretary, and when he resigned he left his certificate in the company's safe. In some manner, but without intention, it got among defendant's papers, and,...