Roney v. Healy

135 N.W. 959, 170 Mich. 46, 1912 Mich. LEXIS 790

• Court: Michigan Supreme Court
• Decided: May 3, 1912
• Docket: Docket No. 56
• Status: Published

Opinions

Ostrander, J.

The action is assumpsit; plaintiff having declared upon the common counts and filed a bill of particulars of his demand, reading:

“ To the reasonable value of services rendered by plaintiff to defendant in procuring a loan for defendant of $135,000 ...............$5,000.”

When the cause came on to be tried, plaintiff was sworn ’ as a witness in his own behalf, and while giving his testimony his counsel asked counsel for the defendant for a certain bill, rendered by plaintiff to defendant, and was informed:

“ We have not it. I think Mr. Hally has those papers; I understand he has.”

Thereupon counsel for plaintiff said:

“Mr. Hally is out of town; but Mr. Hally was subpoenaed by us Saturday, and we knew of no reason why he should not be here until yesterday afternoon at 5 o’clock, and he called me up to my house, and stated that he overlooked the fact, when the papers were served upon him, that he had to be in the Supreme Court today, but he was going to telegraph to Judge Murphy, the presiding judge, as to that fact. So I said I would make that fact known to the court, and while I did not think we needed him until the rebuttal in any event, but I did not believe there will be any question but what Mr. Healy will admit the copy of the paper.”

So far as the record discloses, this was the first intimation the trial judge had that Mr. Hally was subpoenaed, or was expected to be called as a witness for either party; and when the foregoing statement was made by counsel it was not intimated that the trial should be postponed because of the absence of Mr. Hally, or that it made any material difference to plaintiff whether Mr. Hally attended as a witness or not; and it should be also further stated that it was not until defendant rested his case that counsel for plaintiff again called the attention of the court to the matter of Mr. Hally’s absence in the manner indicated in the opinion of Mr. Justice Moore. It was then for the first time there was any statement or discussion of the testimony which it was expected Mr. Hally would give, if he were present. The judge was not advised concerning the time when Mr. Hally could be produced in court, and no continuance or postponement to any particular time appears to have been asked for by counsel. The statement in the opinion of Mr. Justice Moore, that while at Lansing Mr. Hally “wired the Wayne circuit court that he had been regularly subpoenaed in the case at bar, and would return to Detroit on October 12, 1910,” is misleading. From it the inference might be drawn that the trial judge was informed that Mr. Hally would return, or supposed that he would return, to Detroit, so that he might give his testimony on October 12th. But the trial judge was not the presiding judge; and it does not appear that the trial judge knew anything about when Mr. Hally was expected to return to Detroit.

Let it be assumed that the trial judge was properly moved to postpone or continue the case for some time; that he made a ruling upon the motion; and that plaintiff has a proper exception thereto. Still it does not appear that the ruling was wrong when it was made. The court was called upon to exercise a sound discretion; in view of the facts which were disclosed, I think he made a proper ruling, and, if the ruling which was made was proper when it was made, I do not understand that it can have grown into reversible error by reason of the refusal to grant a new trial. It was a ruling reviewable on error (Geddis v. Wayne Circuit Judge, 151 Mich. 122 [114 N. W. 874]), and unless there was a clear abuse of discretion, the ruling of the trial court must stand. McNaughton v. Evert, 116 Mich. 141 (74 N. W. 486).

Considering upon their merits the application to postpone and the refusal to grant a new trial, I think the court committed no error in refusing the postponement and in refusing the new trial, because it was not then, and is not now, made to appear that Mr. Hally would or could give any testimony concerning a material disputed issue of fact. I shall not attempt to set out in this opinion the portions of the record which lead me to this conclusion. It is, in my judgment, sufficient to say that the employment of the plaintiff by the defendant as a broker to procure a loan of money upon the security offered is, upon this record, an undisputed fact. It is undisputed that plaintiff performed services in that behalf. Indeed, both facts are admitted, which dispenses with the necessity for any proof. It is for the reasonable value of services so rendered that plaintiff seeks to recover, and concerning which he took the opinion of a jury. The extent and quality of the services so performed are matters about which Mr. Hally is not informed, as his affidavit discloses. That plaintiff was greatly disappointed in the verdict is not a reason for permitting him to take the opinion of another jury.

The circuit judge was not in error, in my opinion, in submitting to the jury the question whether, by the agreement of the parties, plaintiff was to be paid for securing a loan of $60,000, the sum actually lent to and received by defendant, or for $25,000, on the ground that $35,000 of the $60,000 was used to pay a mortgage upon the property offered as security. Unless there was an agreement to the contrary, plaintiff should have been paid for the money he secured, regardless of the use to which defendant devoted it.

The judgment should be affirmed.

McAlvay, Blair, Stone, and Bird, JJ., concurred with Ostrander, J.