Dillon v. Pinch

Grant, J. {after stating the facts). 1. The defendant was asked: “ Mr. Pinch, with the knowledge that you have now of what you went through with those cases, and the risks that you ran winning them, — taking all these things into consideration, to say nothing about any special agreement — what was it well worth for_ the services that you rendered there?” The question was excluded. The ruling was correct. The defendant had made no such issue. He relied upon a special agreement, and the jury, in- response to a special question, found that no such agreement was made. Each party relied upon an express agreement. No issue of an implied agreement was made by the pleadings. McDonald v. Ortman, 98 Mich. 40. 2. Plaintiff’s counsel was permitted to interrogate the defendant as to his agreement with Alvira Smith. The claim of the defendant appears to have been that he was acting in the Alvira Smith suit for the benefit of both parties, and that her suit was made the test case. We think the question was pertinent, therefore, as to what arrangement he made with her. 3. The attorney for the heirs of Mrs. Smith in the suits instituted by them against Pinch and others to recover the insurance money was introduced as a witness for the defendant, and testified to the value of the defendant’s services in those suits. After the conclusion of the cross-examination the plaintiff made him his own witness, and interrogated him, without objection, as to certain negotiations for a settlement between plaintiff and the heirs of Mrs. Smith. He testified that they made a settlement with plaintiff for $250, and that plaintiff gave an order on defendant for that amount, which defendant refused to pay.- Shortly before the trial, Mr. Stine, one of plaintiff’s attorneys, had had a conversation with Mr. Hatch. [152] In order to refresh his recollection, Mr. Hatch was asked if he did not say to Mr. Stine, in that conversation, that defendant said to Dillon that he had not intended to charge him much, if anything, for getting the money, but now he would make it cost him as much as he could. The question was answered, under the objection that it was leading and incompetent. The witness replied that he thought something of that kind was said, but he could not remember the exact words. The testimony was not offered or received or used for the purpose of impeachment, but solely for the purpose of refreshing his recollection. We think the question rested in the sound discretion of the circuit judge, and that no error was committed in allowing it. 4. The plaintiff established his prima facie case, by showing the money in the hands of the defendant. Its receipt by the defendant was conceded. The court was correct in instructing the jury that the burden of proof then rested upon the defendant to establish his defense by a preponderance of evidence. The judgment is affirmed. The other Justices concurred.