People v. Cotteral

• Decision Date: 17 November 1897
• Court: Michigan Supreme Court
• Parties: PEOPLE, TO USE OF HOLMES ET AL., v. COTTERAL ET AL.

73 N.W. 19

115 Mich. 43

PEOPLE, TO USE OF HOLMES ET AL., v. COTTERAL ET AL.

Supreme Court of Michigan

November 17, 1897

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Suit by the people of the state of Michigan, for the use and benefit of Frank B. Holmes and others, against J. W. Cotteral, J. W Cotteral & Co., Charles E. Bresler, and John E. Calnon. Plaintiffs had judgment, and defendants bring error. Affirmed.

James H. Pound and Peter E. Park (Elliott G. Stevenson, of counsel), for appellants.

C. E Warner, for appellees.

GRANT J.

Three objections are raised against the judgment:

1. It is urged that the execution of the bond and contract was not sufficiently proven. A sufficient reply to this is that these instruments were declared upon, and their contents substantially set forth in the declaration. No affidavit was filed, denying their execution. Under Cir. Ct Rule 8, plaintiffs were not required to prove their execution.

2. One of the plaintiffs testified that they "furnished the material, upon the order of Cotteral & Co., used in the high-school building; that the order came to us by telephone and the goods were delivered at the high-school building." This was sufficient evidence both of sale and delivery, in the absence of any testimony to the contrary. There being no evidence to the contrary, the court correctly held that the sale and delivery were proven.

3. The main contention is that the justice of the peace had no jurisdiction to try the case, because the penalty of the bond was in excess of his jurisdiction. It is insisted that the judgment in such cases should be for the penalty of the bond to be discharged by payment of damages sustained by the breach thereof. Defendants rely, to support this, upon Probate Judge v. Dean, 52 Mich. 387, 18 N.W. 118; Bishop v. Freeman, 42 Mich. 535, 4 N.W. 290; Gray v. Stafford, 52 Mich. 497, 18 N.W. 235. Plaintiffs insist that the case is ruled by Montgomery v. Martin, 104 Mich. 390, 62 N.W. 578. The summons was in assumpsit, and the declaration sets forth the contract and bond, neglect of Cotteral & Co. to pay, and claims damages to the amount of $500. The object of this statute is to protect the interests of individual laborers and material men, and to secure to each a remedy upon this bond, when the contractors have neglected to pay. Section 3 authorizes the prosecution of the bond "by any person, firm or corporation to whom any money shall be due and payable on account of having performed any labor or furnished any material in the...