125 Mich. 70 | Mich. | 1900
Darling and Smith, plaintiffs, recovered a judgment against Rutherford and Ed. Misner, defendants, in assumpsit. The case is here upon error, at the instance of the defendants. It seems to be conceded that the case hinges upon an item in the plaintiffs’ account for goods sent to Plowman & Tibbitts, the last item of which was furnished two years before the defendants began business, at a time when Rutherford and one Eugene Misner were doing business as copartners. At that time goods were furnished to Plowman & Tibbitts by the plaintiffs, upon request of the defendants, but the parties disagree as to the terms upon which they were furnished; plaintiffs claiming that they refused to give credit to Plowman & Tibbitts, and that it was agreed that the credit should be given to Rutherford & Misner, while defendants assert that the older firm of Rutherford & Misner agreed to pay for them only when they should receive payment from Plowman & Tibbitts. About two years after the last item was furnished, Ed. Misner bought
It is beyond dispute that Ed. Misner was not a party to the original contract, and that the only theory upon which he can be held liable is that he assumed the liability of Eugene Misner for a valid consideration. But, even if he did so, he did not thereby become liable to these plaintiffs, who were in no way parties to that transaction. There is not a suspicion of evidence tending to show novation to be found in the record. See T. Pars. Partn. § 337, citing Ex parte Williams, Buck, 13, and other cases. A similar question was discussed by Chief Justice Campbell in Hayes v. Knox, 41 Mich. 531 (2 N. W. 670). He said: “The new firm were strangers to the old, and could not become debtors to Knox without his acceptance of the subrogation.” The same learned jurist used similar language in the case of Ayres v. Gallup, 44 Mich. 14 (5 N. W. 1072). He said:
“But the present plaintiffs are not the persons to whom Gallup paid his money, and the fact that they purchased the partnership assets, and became responsible to the outgoing partners, does not bring them into contract relations with the creditors of that firm, and no dealings were ever had whereby Gallup accepted the new firm as his debtor in lieu of the old.”
In this view of the case, it was error for the court to instruct the jury that, “in order to find for the defendants, they must find that the new firm did not accept the obligations of the old firm.” Something more than an agreement between the old and the new firms was necessary to create a liability in favor of plaintiffs.
The judgment is reversed, and a new trial ordered.