Pennock v. Fuller

• Decision Date: 01 January 1879
• Parties: JOHN W. PENNOCK v. MORRIS K. FULLER.
• Court: Michigan Supreme Court

41 Mich. 153

2 N.W. 176

JOHN W. PENNOCK

v.MORRIS K. FULLER.

Supreme Court of Michigan.

Filed 1879.

A real estate agency is not a professional employment within the meaning of section 5734, Comp.Laws, authorizing the issuance of a capias for a contract liability arising from misconduct or neglect in professional employment.

CAMPBELL, C.J.

Pennock sued out a capias against Fuller and one Janes, on which Fuller was arrested, and released on habeas corpus. Certiorari is now brought to review the proceedings whereby he was discharged.

The affidavit on which the writ issued was made under section 5734 of the Compiled Laws. The only ground which was invoked under that section was that defendant was guilty of “some misconduct or neglect in office, or in some professional employment,” and that the contract liability was thus incurred or complicated. This is the section on which plaintiff's counsel rely.

The affidavit sets up the liability substantially as follows: That the defendants were “copartners in the business of real estate agents,” and, as agents of plaintiff, received the proceeds of land which they sold for him, which, though requested, they have not paid him; that they received it in November, 1877, but concealed the fact, and represented by their letters that they had not received it; but that afterwards, in the spring of 1878, he called at their office, and they admitted they had received the money, and they, or one of them, showed him an entry of it on their books.

This case cannot in our opinion be distinguished in principle from Bronson v. Newberry, 2 Douglas, (Mich.) 38, and People v. McAllister, 19 Mich. 215. The statute in regard to issuing writs of capias divides them into two classes, those which are for damages other than those arising upon contract express or implied, and those arising upon such contract. In both of the cases cited the ground of action was that agents had collected moneys and misappropriated them; and in both cases it was held that a capias could not issue unless under conditions applicable to contracts. The counsel for plaintiff in the present case puts his whole right of action under section 5734 of the Compiled Laws, which is expressly confined to actions arising upon contract.

The only classes of agency which that section covers relates to misconduct or neglect in office, or in professional employment. It was held in both the cases named that a private agency is not either office or professional...