Union Cent. Life Ins. Co. v. Howell
| Decision Date | 26 June 1894 |
| Court | Michigan Supreme Court |
| Parties | UNION CENT. LIFE INS. CO. v. HOWELL ET AL. |
Error to circuit court, Saginaw county; John A. Edget, Judge.
Action on a bond by the Union Central Life Insurance Company against Clarence M. Howell and others. From a judgment for defendants, plaintiff appeals. Reversed.
Swarthout & O'Keefe, for appellant.
John A. Combs and H. A. Forrest, for appellees.
HOOKER, J. (after stating the facts).
The trial judge was in error in permitting evidence in contradiction of the writing. Under rule 79, the plaintiff could not be put to proof of the execution of the instrument or the handwriting of the defendants, such execution not being denied by affidavit. It was as though admitted that the defendants executed and delivered the writing according to its terms. Jenkinson v. Monroe Bros. & Co., 71 Mich. 630, 39 N.W. 854; Inglish v. Ayer, 92 Mich. 370, 52 N.W. 639; People v. Johr, 22 Mich. 461. Furthermore, the bond was an undertaking to "pay or hand over all moneys belonging to said company, which shall at any time be received by him or for which he shall be liable, whether the same shall be or shall have been received by him personally or solely, or hereafter may owe said company, either on account of advances or otherwise, and shall faithfully discharge the duties of said agent," and by its terms covered amounts received as such agent from the date of his appointment, if afterwards due and owing to the company. We think, also, that it was not for the court to determine that the contract was superseded or suspended, the fact being disputed. It should have been left to the jury to say whether it was or not. Neither could the court properly deny plaintiff the right to a verdict upon the ground that the amount was in dispute. There was evidence tending to show that he had received some items, at least, and it was the province of the jury to say how many and what items were shown to have been due to plaintiff. Other allegations of error appear, which we think it unnecessary to discuss. The judgment will be reversed, and new trial ordered. The other justices concurred.
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