McDonald v. McKinnon

62 N.W. 560, 104 Mich. 428, 1895 Mich. LEXIS 748

• Court: Michigan Supreme Court
• Decided: March 19, 1895
• Status: Published

Opinion

Grant, J.

The principal question in this case was disposed of by the former decision (92 Mich. 254), and will not now be reviewed. A sufficient statement of the case will there be found. We have examined the former record, and find it almost identical with the present one. The principal question is again argued at great length. If, however, counsel desired a reargument of that question, they should have moved for* a rehearing. Parties aree entitled to a final decision of all question's raised upon the first appeal to this Court, so that they may enter upon the second trial with all such questions res judicata.

1. It appeared upon the former trial, as well as upon this, that the defendant had sent all the stock of the mining company to the Commercial National Bank of Chicago, to be delivered to one Ettelsohn. Plaintiff’s certificate of stock was sent with the rest, and he went to the bank, and indorsed it, whereupon it was delivered to Ettelsohn. It is contended by the defendant that this was done at plaintiff’s request, for the purpose of securing Mr. Ettlesohn as an indorser upon some promissory notes of plaintiff, and that as a matter of fact this constituted an actual delivery of the stock. Plaintiff gave an entirely different version of this transaction, denying the testimony of both Ettlesohn and defendant. The conflicting testimony raised a question of fact, which was properly left to the' jury to determine. The court instructed the jury that, if they found that the. stock was delivered to plaintiff at Chicago, and that he had, before that time, demanded possession of defendant, and was refused, and that lie had shown himself entitled to it under the terms of his contract, then he was entitled to recover as damages the difference between the value of the stock when demanded and when delivered. The court also instructed them that, if he then obtained control of the stock, it constituted a delivery. We think the charge was correct in view of the special count in the declaration alleging damages for failure to deliver the stock on demand.

2. It is urged that the court erred in instructing the jury as follows:

“ If you find a conversion of this stock by McKinnon,— and by 'conversion’ I mean, if you find that the plaintiff was entitled to it, and demanded it, and that the defendant declined and refused to deliver it, that would make it a conversion, — if you find an unlawful conversion of this stock by McKinnon, and that the plaintiff never got possession of it, never received possession of it down to this time, then you should give the plaintiff, as damages, the value of the stock at the time of such conversion, with interest to date at the rate of 6 per cent, per annum.”

The precise claim is that the demand and refusal did not constitute a conversion, but were only evidence of a conversion; and in support of this is cited Daggett v. Davis, 53 Mich. 35. The language of that case must be construed with reference to the facts. The defendant was the president of the corporation. Plaintiff had been its secretary, and when he resigned he left his certificate in the company’s safe. In some manner, but without intention, it got among defendant’s papers, and, after he found it, he refused to surrender it, claiming that there were unadjusted matters between plaintiff and the corporation which should be first adjusted. Defendant had made no use of the certificate for his own purposes, nor had plaintiff been denied his rights as a shareholder in the corporation, nor was there any evidence of fraud or deceit. Two facts alone were proven, the demand and refusal. The certificate was produced upon the trial. It was held that there was no absolute conversion, entitling plaintiff to recover the full value of, the stock, but that there might have been a technical conversion by a partial or temporary deprivation, and that the demand and refusal did not of themselves constitute a conversion, but were evidence thereof to go to the jury. That was a well-considered case, and many authorities were cited, commented upon, and some distinguished. There is nothing in the record of the case now before us, under plaintiff’s own evidence, to show that defendant, when the certificate was first demanded, •did not act in the honest belief that it had been burned in the fire, with other records and papers of the corporation. There is, however, testimony from plaintiff to support the claim that, after defendant discovered the certificate, he purposely kept it, neglected and refused to call a meeting of the stockholders, and finally denied that plaintiff was entitled to it under his contract. If this was proven to the satisfaction of the jury, a case of conversion was established under the former decision, such as entitled plaintiff to recover the full value of the stock at the time the defendant ascertained that he had the certificate. If plaintiff had earned and demanded it, it became the duty of the defendant to deliver it as soon as he found it. The mischief of the instruction lies in the fact that the jury might very naturally have inferred’ that the first demand and refusal constituted a conversion, notwithstanding that the defendant might then have been acting in entire good faith. In that case, demand and refusal were not alone sufficient to establish conversion, but were proper evidence to go to the jury in connection with the other evidence.

3. Evidence was introduced, under objection and exception, of the amount of money which plaintiff had expended in his exploratory work, and also the amount expended after he claimed that he had developed a bed of ore which entitled him to his stock, and which was expended under the agreement to mine, which he claims was made between him and defendant, and in which he further claims the company acquiesced. Plaintiff's counsel, at the close of his testimony in chief, on his own motion, withdrew the amount expended on the exploratory work from the consideration of the jury, stating that he thought its admission was error. The other expense was permitted to stand for the consideration of the jury. The admission of this testimony was error. Plaintiff agreed to bear all the expense of the work. If he developed no mine, it was his loss; and whether it cost much or little had no legitimate bearing upon any issue involved. It is very natural that the expenditure by plaintiff of such large sums of money as he testified to should prejudice the jury.

Other objections are raised, but we find in them no error, nor do we regard them of sufficient importance to discuss. They are expressly overruled.

'Judgment reversed, and new trial ordered.

The other Justices concurred.