Freeman v. Hoag

Brooke, J. (after stating the facts). The first three assignments of error are based upon the alleged erroneous refusal of the court to give plaintiff’s requests to charge as presented. An examination of those requests will show that they amounted to requests for a directed verdict in favor of the plaintiff. We are of opinion that they were properly refused. It would seem that if defendant, Hoag, indorsed the $1,000-note of the Millens at the request of the plaintiff, who was interested in securing the money with which to settle with Sawyer, thus releasing stock held by Sawyer, a part of which went to plaintiff under a promise of plaintiff to release defendant from his obligations under the contract sued upon, a sufficient consideration would be made to appear. Whether such an agreement was made was, in our opinion, a question of fact for the jury under proper instructions and, assuming it to have been such a question, we do not understand the instructions of the trial court are criticized by plaintiff’s counsel. The remaining important assignments of error refer to the denial of the motion for a new trial. Bearing upon the question of newly-discovered evidence, plaintiff introduced the affidavit of one Tallmadge to the effect that on or about September 13, 1918, defendant, Hoag, desired to make a loan; that in the course of negotiations,— “he stated to this deponent that he wanted moneys to [249] pay to some other party, his partner as he expressed it, whose name he did not state, but who lived at Ann Arbor, who had certain interests and ownership in the said chattel mortgage and the said stock certificates so hypothecated as aforesaid, and that he wanted the said moneys of three hundred dollars ($800) to pay off or buy off his partner or such other party thus interested jointly with him and so that he and the said Millen could deal with each other as they desired, for the said other party, his partner, at Ann Arbor, was vigorously insisting him, said Hoag, that said Hoag must proceed with the foreclosure under the said chattel mortgage and the said stock certificate and make collection of the debt that said Hoag and the other party, his partner, had jointly against the said Millens as aforesaid, and that he desired to obtain the three hundred dollars ($300) to buy him off or pay him off as aforesaid, so that he would not have to crowd the Millens which he did not want to do at that time for some reason which he did not state.” In his first decision upon the motion the court held: “I find that the newly-discovered evidence in this case, as set forth in the motion and affidavit, meets the requirements for a new trial as laid down by the courts. It is therefore ordered that a new trial be granted in the above-entitled cause.” After striking this decision from the files he dealt with the question as follows : “The only remaining ground upon which plaintiff bases his motion for a new trial is that of newly-discovered evidence. I think this position is also untenable. The plaintiff attempted during the trial of the cause to introduce evidence showing that defendant offered to pay him $300 for full discharge of the claim of more than $1,000 involved in the suit. The testimony was rejected because it was an offer on the part of the defendant to compromise. The newly-discovered evidence which plaintiff wishes to introduce, is of one Tallmadge, and, in substance, that defendant in borrowing $300, said that it was to pay to a certain party. I regard the proposed testimony as testimony tending to show further that the defendant was se [250] curing money, if to pay the plaintiff at all, was to pay him as a compromise.” The significance of the alleged newly-discovered evidence, if introduced, is that it would or might convince the jury that defendant, Hoag, would not be borrowing money in September, 1918, to buy out plaintiff’s interest if said interest had been extinguished by agreement at the time the $1,000 Millens’ promissory note was indorsed by defendant. We are of opinion that the court was in error in concluding that such evidence would have been inadmissible as tending to show a compromise between plaintiff and defendant. The witness, if examined, would apparently have no knowledge of such an effort, if any, being made on the part of defendant. Touching upon the ground alleged in the motion for new trial that the verdict was against the great weight of the evidence, plaintiff points out that the $1,000-note indorsed by defendant bore date July 1, 1916, and that in open court in a case wherein Homer C. and May Millen were plaintiffs and defendant, Hoag, was defendant in August, 1918, more than two years after his alleged release from obligation under the contract, defendant testified: “Q. You were to put up the attorney fee? “A. I was to look after certain investigations he was to make * * * we had to have the thing gone into pretty thoroughly and, of course, provide for him. “Q. Did you advance money upon that? “A. I have not advanced it, I expect I will have to. “Q. Do you know how much that will amount to? “A. I suppose around $700, something like that. “Q. With whom did you agree to take care of that? “A. Mr. A. F.'Freeman. “Q. You agreed to pay him $700 for that? “A. We have not determined upon the amount, because if it were successful it would be a little more and if not it would be a little less. Mr. Freeman was taken into the case at my suggestion, * * * Well, [251] it figures like this: we will say the first mortgage was for $1,400 (really $1,237.34), and we will say that I gave them $500 in money * * * I was* to take care of Mr. Freeman’s account which was something we couldn’t exactly arrive at until we got to the end. “Q. Do you know what those amounts figure up at? “A. I couldn’t tell you until I settle with Mr. Freeman.” While this evidence may not be conclusive against defendant’s present contention, it would appear to be significant, and, in a case where a fact is asserted by one and denied by one other, no other witnesses to the transaction being obtainable, we are impressed that its significance may be accentuated. Upon a careful perusal of the whole record we are disposed to the view that the conclusion first reached by the learned trial judge that a new trial should be ordered was correct. The assignments of error based upon alleged improper conduct of counsel are not considered. Upon another trial no occasion for complaint on this score should be permitted to arise. The judgment is reversed and a new trial ordered, with costs. Bird, C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.