| Mich. | Apr 17, 1877
During the lumber season of 1875 Comstock was carrying on banking at Clam Lake, and Norton was engaged in lumbering near there.
Norton had two lumber camps, one of which was managed by a foreman named Boseley, and the other was controlled and conducted under a written contract with Norton, by Orrin L. Johnson and W. P. Miller, who assumed the firm style of O. L. Johnson & Co. March 29, 1875, Boseley issued to one Burns a ticket indicating that Burns was entitled to ihirty-threo dollars and ninety cents from Norton, for labor done. It was directed to Norton. Burns, however, endorsed it to Comstock, who cashed it.'
From February 16th to April 3d, Johnson & Co. drew
Comstock claimed that Norton requested him to cash all such orders, and promised to repay him whatever he should so advance for him. Norton, on the other hand, denied making any such arrangement, and insisted that he was under no obligation to take care of orders issued by Johnson & Co. Norton refusing to redeem the orders, or refund to Comstock what he had paid, the latter sued to recover the amount.
Johnson, being called to the stand on the part of Com-stock, testified that Norton instructed him that if he would draw orders in favor of the men, he, Norton, would have them cashed by Comstock, and that these orders were drawn accordingly and charged up to Johnson & Co. by Norton.
Further evidence was given which tended to show that Norton requested Comstock to cash the orders and promised to reimburse him whatever he should advance.
The counsel for Comstock then offered in evidence the written agreement between Norton and Johnson & Co., but the court excluded it, on Norton’s objection that it was irrelevant and immaterial. This ruling was erroneous. It was part of the theory of Norton’s defense that he had no concern whatever with the payment of the men under Johnson & Co., and that his position was not consistent with the idea of his assuming to become liable for ad-\ vanees to meet their orders. The contract, however, seems to have contemplated that Norton would or might look after the wages due the men, and hence favored the plaintiff’s construction. Moreover, it was closely connected with the transaction between Comstock and Norton, and was needed to help to a perfect understanding of the other evidenee. The jury were entitled to have it laid before them as one. of the surrounding facts essential to a satisfactory detei-ruination.
There was error in these rulings. The plaintiff was entitled to a charge applicable to the theory he contended for and which his evidence tended to support, and the instruction which was refused should therefore have been given. He claimed, and his evidence favored the position, that he' simply cashed the orders in question pursuant to Norton’s request and on his promise to reimburse him; and if such was the construction of the transaction, the statute of frauds had no concern with it. The arrangement was original and' direct, and not secondary or collateral. It was merely an arrangement whereby Comstock undertook to act as Norton’s banker, and, at his request and to his use, pay such orders as might be drawn on him. The charge given in this con-' nection was not applicable to the facts on either side. Not on the part of Comstock as already explained, and not on the part of Norton, because his position on the facts-was, that he never requested Comstock to pay any orders, and never promised to reimburse him, and consequently that no-verbal promise had been made to be ruled by the statute of frauds.
The plaintiff was allowed to recover only for the amount of the little order drawn by Boseley.
The judgment should be set aside, with costs, and a new trial ordered.