Oceana Canning Co. v. King , 195 Mich. 628 ( 1917 )

Fellows, J.

(after stating the facts). It is the claim of the plaintiff here, and was in the court below, that inasmuch as it attached to the declaration a copy of the freight bill upon which appeared the shortage notation referred to in the statement of facts, the notation was an admission of liability, and that, in the absence of an affidavit denying its execution, defendants could neither deny nor explain it; that not only was the execution of the paper admitted but also the authority of the agent to execute it, citing Circuit Court Rule 33; Citizens’ Savings Bank v. Brass Works, 155 Mich. 3 (118 N. W. 507); Inglish v. Ayer, 92 Mich. 370 (52 N. W. 639). It must be apparent from what has already been said that the freight bill, with the notation, was not the instrument upon which the action was grounded. It was upon its face an admission of shortage, of nondelivery, and created no contract relations. Circuit Court Rule 33 provides:

“Upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant, unless the defendant or some one in his behalf shall file and serve a copy of an affidavit denying the same, and this rule shall apply in actions brought against indorsers as well as other parties, and shall also apply in favor of a defendant in cases where claims by way of set-off are insisted upon by him. Such affidavit shall be filed, when by the defendant, with the plea, and, when by the plaintiff, within ten days after service of the specific set-off claimed; but the court may, upon proper showing, enlarge the time for filing such affidavit.”

It will be noted that this rule has reference to actions upon written instruments, and in such actions “plain-' tiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant.” This must be construed to apply, and only to apply,' to the instrument sued upon. It has.no reference to a paper which may be used as evidence to support the plaintiff’s claim, and which is not the instrument upon which the cause of action is based, and which creates no contract relations between the parties. Plaintiff’s position as to the construction of this rule is therefore untenable. Nor is the plaintiff aided by Circuit -Court Rule 23. One of the essential elements of the plaintiff’s case was nondelivery of the goods shipped; proof by the defendants that the goods shipped were delivered was not an affirmative defense within the meaning of Circuit Court Rule 23, but might be shown under the general issue. Williams v. Brown, 137 Mich. 569 (100 N. W. 786); Greenman v. O’Riley, 144 Mich. 534 (108 N. W. 421, 115 Am. St. Rep. 466).

We are of the opinion that the case was one of fact for the jury. While we have held that the freight bill with its notation was not the instrument' sued upon within the meaning of Circuit Court Rule 33, there was sufficient evidence in the case that it was signed by an authorized agent of defendant; it was an admission of. shortage, and it was for the jury under all the evidence to say whether it had been sufficiently explained away. This admission, with the other evidence, was sufficient to take the plaintiff’s case to the jury; on the other hand, the proof that the seals on the car were intact when the car was delivered to Franklin MacVeagh & Co., that all the goods were not removed during the day, the absence of any evidence that the car was sealed during the night of the 5th of November, the fact that upon the record the shortage was not discovered until the. goods reached the warehouse of plaintiff’s assignor, was sufficient to take the case to the jury on behalf of the defendant.

It therefore follows that it was error for the court to direct a verdict for the plaintiff, but that it was not error to refuse to direct a verdict for the defendant.

The case is reversed, and a new trial ordered. Defendants will recover costs of this court.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.