Spicer v. Bonker

• Decision Date: 13 April 1881
• Citation: 45 Mich. 630,8 N.W. 518
• Court: Michigan Supreme Court
• Parties: SPICER v. BONKER.

8 N.W. 518

45 Mich. 630

SPICER v. BONKER.

Supreme Court of Michigan

April 13, 1881

The right to direct a verdict for the defendant, on the mere presentation of plaintiff's case by his counsel, is one that should be sparingly used, and only when the court is certain that a full and complete presentation has been made. Defendant and plaintiff were indorsers for one S., who had given mortgages to considerable amounts on property already encumbered, to both of them, to secure them upon their liability. Plaintiff, ascertaining that he would have the entire debts to pay, and to save himself from loss as much as possible, procured defendant to assign to him his mortgage and S. to give a deed, the object sought being to control the rents until a foreclosure under prior liens. The deed from S was made to plaintiff's wife, and she subsequently assigned over to plaintiff "all the use" of the property at the time of the deed from S. Defendant had an assignment from S. of leases of the property, which assignment plaintiff, at the time of the deed, did not know of. Held, that he was not liable to plaintiff in an action for money had and received for the rents collected.

Error to Eaton.

H.A. Shaw, for plaintiff in error.

John M. Corbin, for defendant in error.

COOLEY J.

In this case the circuit judge directed a verdict for defendant immediately that plaintiff's counsel had concluded his opening to the jury, and the case is before us on exception to that direction. It is denied that the circuit judge has any lawful authority for such direction in any case; the plaintiff in this state having always having a right to go to the jury on the facts. Cahill v. Ins. Co. 2 Doug.Mich. 124. It is also insisted that the facts stated in the opening were sufficient, if proved, to entitle the plaintiff to a recovery. Therefore, if the circuit judge had the authority which he assumed to exercise, he erred in exercising it in this case. The record presents no other questions.

1. The authority to direct a verdict for defendant on the mere presentation of the plaintiff's case by his counsel, is no doubt one that ought to be very sparingly used if used at all, and the circuit judge ought first to be very certain that the presentation is full and complete, and covers all the points the plaintiff intends or expects to cover by his evidence. The circuit judge must not take advantage of mere accidental or inadvertent omissions as the defendant may when submitting the case after the proofs are all in; but if the case stated is sufficient except upon some particular point should direct attention to that point that the counsel may have opportunity to make his case more complete if he has unintentionally omitted anything. In replevin, for example, and trover, it is sometimes necessary to prove a demand; but the demand in any particular case may be only a formal requisite, and counsel in stating to the jury the merits of his case might not unnaturally fail to mention it. It would be inexcusable in a trial judge, under such circumstances, to turn the plaintiff out of court without first giving him the opportunity to perfect his opening after calling his attention to the omission.

But if he observes due care, the circuit judge commits no error in taking the course that was adopted here. The plaintiff's opening is in the nature of an offer of proofs, and the circuit judge directs a verdict for the defendant because assuming the proofs to have been received, they fail to make a case. The trial is thereby shortened, and no wrong is done to any one. The circuit judge has an undoubted right, in any case, to advise the jury to return a verdict for the defendant when the plaintiff gives or offers no evidence to establish any necessary part of his case. Kelley v. Hendrie, 26 Mich. 255.

There is no claim in this case that counsel had failed to make his opening full and complete. We have therefore only to see whether a case was stated which would entitle him to ask from the jury a verdict in his favor.

2. The action was for money had and received by defendant to the plaintiff's use. The case stated was that for sometime previous to 1878 one Sweezey had been in business at Eaton Rapids with the defendant Bonker as his clerk; that in various ways he had become greatly embarrassed; that plaintiff and defendant were indorsers for him to the amount of $1,200 and upwards; that he had given to plaintiff mortgages as securities for this amount, and to defendant a mortgage for some $2,500; that the property mortgaged was otherwise largely encumbered, and was soon to be taken to satisfy previous liens; that it was then in...