Drake v. International Harvester Co. of America

Carpenter, J. This suit was commenced in justice’s court. It was brought for the recovery of attorney fees. Plaintiff was the only witness. He testified that there was an agreement entered into between himself and One Levi G. Merriman, general agent for the defendant; that before the commencement of this action the said Levi G. Merriman died. Defendant objected to the admission of any testimony relative to the agreement for services performed under said agreement as being equally within the knowledge of the deceased. Plaintiff thereupon introduced testimony showing the services he rendered and their value, and was permitted to recover upon the quantum meruit. The case was taken to the circuit court by a writ of certiorari and the judgment of the justice affirmed. It is brought before us for review upon a case made, and we are asked to reverse the judgment of the circuit court upon the ground that it is to be presumed that the agreement made between plaintiff and defendant’s general agent provided for the former’s compensation, and therefore there can be no recovery on the quantum meruit. We cannot consider this question. We can only consider such questions as are shown by the record to have been properly raised in the circuit court. What those questions were does not appear. They would be shown by the errors assigned in the affidavit for the writ of certiorari, and for no other error could the circuit court reverse the judgment. See Higley v. Lant, 3 Mich. 612; Fowler v. Railway Co., 7 Mich. 79; Witherspoon v. Clegg, 42 Mich. 484. That affidavit is not contained in the record in this court, and we have no means of knowing what errors were assigned therein. If defendant were seeking to reverse the judgment up [563] on a meritorious ground, we might entertain a motion to remand and correct the record. But it is not seeking to reverse the judgment upon a meritorious ground. Its ground of reversal is not meritorious unless plaintiff agreed with defendant’s general agent to receive less than adequate compensation for his services. It is not to be presumed that he made that agreement. The judgment is affirmed. MoAlvay, C. J., and Grant, Blair, and Moore, JJ., concurred.