City of Detroit v. Houghton

4 N.W. 171, 42 Mich. 459, 1880 Mich. LEXIS 674

• Court: Michigan Supreme Court
• Decided: January 13, 1880
• Status: Published

Opinions

Graves, J.

The city brought a joint action of debt against John Taylor, Jr., John Taylor, Catharine Dardis, and William Houghton, and counted on an official bond given by John Taylor, Jr., as ward collector, and executed by-the other defendants as his sureties.

Mrs. Dardis pleaded the general issue and denied upon oath the execution of the bond. Houghton also pleaded the general issue and added a notice of defense depending on the validity of the objection taken by Mrs. Dardis.

The only evidence offered was on the part of the city, and from that it appeared conclusively that Mrs. Dardis never executed the bond or became* a party to it. As against her therefore the instrument was not admissible and there was nothing for the jury, and the effect bore upon the whole case.

The result as respected Mrs. Dardis was decisive against the city in this action as to all the defendants. The suit being upon contract against several, and being carried through on that basis, the city was bound to prove a joint liability on the part of all. Winslow v. Herrick, 9 Mich., 380; Ballou v. Hill, 23 Mich., 60; Mace v. Page, 33 Mich., 38; Livingston’s Ex’rs v. Tremper, 11 Johns., 101; Shirreff et al. v. Wilks, 1 East, 48; Buller’s N. P., 129; 2 Evans’ Poth., 57: 1 Chitty Pl. (16th Am. ed.), 51, 52 and notes; Anderson v. Robinson, 38 Mich., 407.

Submitted Jan. 20. Denied Jan. 21. E. A. Baker and E. F. Gonely for the motion.

But as we have seen, instead of making such proof the city itself negatived liability on the part of Mrs. Dardis. The inevitable consequence was that the other defendants became entitled to a verdict.

Under these circumstances the questions suggested by the learned counsel for the city appear to be entirely immaterial.

The judgment must be affirmed with costs.

The other Justices concurred.