Conroy v. Haffner

Bird, J. This case originated in justice’s court, and involves a claim of $84. The defendant prevailed in justice’s court, but in the circuit court plaintiff was given a judgment for his claim. The circumstances out of which the controversy arose are as follows: Plaintiff Conroy purchased a stallion for $517.50 at his neighbor Hawley’s auction sale, and gave his note therefor, due in one year. Plaintiff claims that, when he executed the note, Hawley agreed to leave it at the Corunna or Lennon Bank, and at its maturity he could have a renewal, if he desired. A few days before it was due, the Lennon Bank notified him of the date of maturity. Later he tendered payment, part in cash and the balance in a promissory note, but the note was refused on the ground that Mr. Hawley would not accept it. Defendant Haffner at this time advised plaintiff that Hawley still owned his note, and that he had it for collection. Subsequently plaintiff went to the bank with funds sufficient to pay the note, but explained to defendant that Hawley was indebted to him in the sum of $84, and he wanted to apply the account on the note, but he wanted to avoid making his indorser any trouble. At the suggestion of defendant, the $84 was left with him personally, to be applied on the note, when Hawley’s consent should be obtained. The application was never made nor the money returned to plaintiff. The defendant denied that the $84 was left with him personally, and denied that Hawley was the owner of the note, but that the bank bought it soon after it was given, and when due plaintiff paid it. The assignments of error relate to the rejection of evidence and to the charge of the court. 1. The discount register of the bank was offered [291] in evidence to corroborate the defendant that the bank, and not Hawley, was the owner of the note. Objection was made thereto, and sustained. This is assigned as error. The defendant argues that this testimony was material as bearing upon the ownership of the note. His argument is based upon the theory that the entry was “memoranda made by a third party.” We think counsel is in error in assuming that it was memoranda made by third parties. The bank was a private one, and defendant was a part owner thereof. He was also cashier. The entry in the bank register was made by himself. In view of these facts, the entry should not be considered as one made by a third party. The rule governing the admission of memoranda made by one of the parties to the litigation should be applied here. Such memoranda is regarded as self-serving and inadmissible. Weaver v. Bromley, 65 Mich. 212 (31 N. W. 839); Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Hodges v. Power Co., 109 Mich. 547 (67 N. W. 564); Collins v. Shaw, 124 Mich. 474 (83 N. W. 146); Stabler v. Clark, 155 Mich. 26 (118 N. W. 605). 2. Plaintiff was asked upon cross-examination: “Did you ever write to Mr. Haffner here, or have your attorney write to him and ask him about Mr. Hawley’s property, whether there was anything around that you could get hold of or not to get this $84?” The question was objected to because immaterial. The court, however, appears to have excluded it on the ground that it asked for the contents of a writing. The question was objectionable on the latter ground, because it not only inquired as to the fact of his having written a letter concerning the matter, but also asked for the contents of it. 3. The trial court was requested to charge that: “If the jury finds that Hawley sold the note to the bank in the ordinary course of business, then Conroy [292] was obliged to pay the amount of the note, $517.50, to the bank, and cannot recover anything in this case.” The charge of the court fairly shows, we think, that this request was covered. After reciting to them the claims of the plaintiff, he instructed them that: “But if at that time there was no such agreement, and no such understanding, and that the money was given to the defendant for the purpose of paying this note, and the note was delivered to him at that time, then, in that case, the plaintiff could not recover.” In connection with this assignment, defendant complains that his theory of the case was not given to the jury by the court. We are of the opinion that the court fairly stated the claims of the parties to the jury, and gave the law applicable thereto. We have examined the other errors assigned and find no reversible error in them. The judgment of the trial court is affirmed. McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.