Wooden v. Durfee

Decision Date29 June 1881
Citation9 N.W. 457,46 Mich. 424
CourtMichigan Supreme Court
PartiesWOODEN v. DURFEE.

Action of the court in this action, in taking the case from the jury and directing a verdict for the plaintiff, held, erroneous.

Error to St. Clair.

Atkinson & Vance, for plaintiff in error.

Crocker & Hutchins, for defendant in error.

COOLEY, J.

In the circuit court the judge directed the jury to return a verdict for the plaintiff, and the writ of error raises the question whether he could rightfully do this on the case as it stood. The respondent in the circuit court was the estate of Albert Staley. The claimant was Sarah M. Durfee, as administratrix on the estate of James F. Durfee, deceased. The claim was made upon a bond, which, with the justification of sureties and approval of the probate judge, is given in the margin. [*]

No question is made that the jurisdictional facts essential to the giving of a valid bond existed, but it was denied that the bond in controversy was ever so executed as to make it a binding obligation of Staley. It will be observed that Solomon Kittridge is named in the bond as one of the sureties, but he does not sign it. It must be assumed that the other sureties when they signed contemplated that he would join in the execution; and the absence of his name makes it incumbent upon the claimant to give some explanation before she can be in position to demand judgment against Staley and Savage. Johnston v. Kimball, 39 Mich 187; Hall v. Parker, Id. 287. But Savage denied under oath the execution of the bond by himself, and gave strong evidence tending to show that his alleged signature was a forgery and the pretended justification a fraud. This showing added to the necessity that the claimant should give such evidence as should affirmatively establish the fact that Staley signed and delivered the bond with full knowledge of all the facts.

The bond was drawn by R.P. Eldridge, who was attorney for Gardner M. Durfee in the probate appeal. Durfee signed it Saturday evening, October 27, 1877. The next day it was taken to Staley's house and signed by him. In the subsequent proceedings Staley appears as the actor. Kittridge was at Staley's house that forenoon, but refused to sign the bond. Staley sent for Savage, and Savage signed it, on being assured by Staley that the bond was bad and he would protect Savage against all harm. Staley afterwards got Abram Maxon to sign the bond as a witness, and then went without being accompanied by Savage to the house of Hart, the justice, and induced him to sign the certificate of justification. The next day the bond was sent to the county seat and delivered to the judge of probate.

The most of these facts the claimant insists are entirely undisputed on the evidence; and she claims that they establish beyond question the liability of Staley on the bond, and that the judge was at liberty to so instruct the jury. But the difficulty is that the facts were not conceded or beyond dispute: there was evidence of them which probably ought to have satisfied any one to whom it was addressed; but evidence is for the jury, and the trial judge cannot draw conclusions for them. It is said that on some points there was no evidence of a conflicting nature; but that does not aid the claimant. A jury may disbelieve the most positive evidence, even when it stands uncontradicted; and the judge cannot take from them their right of judgment. If they return what he thinks is a perverse verdict, he may set it aside and order a new trial; but he cannot take upon himself their functions as was done here.

The judgment must be reversed with costs and a new trial ordered.

(The other justices concurred.)

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Notes:

[*] State of Michigan, County of Macomb,--ss.:

In probate court for said county.

IN THE MATTER OF THE ESTATE OF JAMES S. DURFEE DECEASED.

Know all men by these presents, that we, Gardner Mr Durfee, as principal, and ...

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