Wildey v. Crane

• Decision Date: 17 November 1886
• Citation: 63 Mich. 720,30 N.W. 327
• Court: Michigan Supreme Court
• Parties: WILDEY v. CRANE.

30 N.W. 327

63 Mich. 720

WILDEY v. CRANE.

Supreme Court of Michigan

November 17, 1886

Error to Van Buren.

Heckert & Bieck, for plaintiff and appellant.

Geo. E Breck, for defendant.

CHAMPLIN J.

The defendant is an attorney at law practicing in Van Buren county. The plaintiff brought an action against defendant in assumpsit, and filed a declaration setting out his cause of action as follows:

"Van Buren County--ss.: Albert R. Wildey complains of Edgar A Crane, the defendant, in a plea of trespass on the case upon promises, for that whereas, heretofore, to-wit, on the eighteenth day of November, A.D.1881, defendant, being an attorney at law at Paw Paw, in said county, covenanted and agreed with the plaintiff that he would bring a suit in the name of the plaintiff against the Farmers' Mutual Fire Insurance Company of Van Buren county, in the state of Michigan, for the recovery of the value of a certain horse lost by fire,--said horse, when so destroyed by fire, being the property of the plaintiff herein; that the plaintiff's claim being a doubtful one, and the said insurance company not being liable to said plaintiff for his said losses, as said plaintiff had been advised, and said plaintiff having abandoned the idea of attempting to recover anything from said insurance company for or on account of said loss, the said defendant approached the said plaintiff, and solicited the privilege of bringing suit against said insurance company, for the recovery of said loss, and expressly agreed with the said plaintiff that if he, the said defendant, did not recover said loss from said insurance company it should not cost said plaintiff anything; that said defendant would pay all costs adjudged against said plaintiff on account of the bringing of said action; that the said plaintiff, on the express understanding that the said defendant should pay all costs incurred on bringing said action in case he failed to recover anything against said insurance company, consented that said action might be brought; whereupon the said defendant commenced said action against said insurance company in the circuit court for the county of Van Buren; that the same was tried in said court, and also reviewed in the supreme court of this state, and it was adjudged by said supreme court that the plaintiff could not recover in said action against said insurance company, and adjudged the plaintiff herein should pay the costs of both courts; that said defendant, on request of said plaintiff, refused to pay said costs, amounting to one hundred and fifty dollars, and the plaintiff herein was compelled to pay the same for the use and benefit of said defendant, yet the said defendant hath neglected and refused to pay the said plaintiff the amount of said costs, as aforesaid, to the plaintiff's damage two hundred dollars, and therefore he brings suit," etc.

To which were added the common counts in assumpsit.

The defendant interposed the plea of the general issue, with notice of set-off. At the trial in the court below the defendant objected to any testimony being introduced by the plaintiff, for the reason that the contract set up in the plaintiff's declaration was champertous and void.

The plaintiff had been sworn as a witness in the cause, and counsel for plaintiff stated to the court what he offered to prove, as follows: "Now, I offer to prove that on or about the eighteenth day of November, 1881, the defendant in this cause was an attorney at law, practicing in the village of Paw Paw, in this county, and that he covenanted and agreed with the plaintiff, Albert R. Wildey, that he would bring a suit in the name of the plaintiff against the Farmers' Mutual Fire Insurance Company of Van Buren county, in the state of Michigan, for the recovery of the value of a certain horse lost by fire, and insured by said company,--said horse when so destroyed by fire, being the property of the plaintiff herein; and that the plaintiff's claim being a doubtful one, and the said insurance company not being liable to said plaintiff for said loss, as said plaintiff had been advised, and the said plaintiff...