201 Mich. 244 | Mich. | 1918
Lead Opinion
Mary Davis, representing her husband’s estate, brought this suit against Archibald Buttars and Charles Bogardus to recover the contract price of a warehouse and stock of merchandise sold to them by her husband for the sum of $1,474.32. It was plaintiff’s claim that it was a joint purchase by the defendants and that both were liable for the purchase price. Defendants denied that it was a joint purchase and asserted that defendant Buttars purchased the merchandise and paid therefor the sum of $474.32, and that Bogardus purchased the warehouse and paid for the same by canceling certain indebtedness owing by deceased to him for lumber. There also appears to have been some claim made by defendants
1. An account book in which the deceased entered his sales was offered and received in evidence showing the following entry:
“October 23, 1905.. Sold the warehouse and stock to Buttars and Bogardus for $1,474.32.”
The admission of this entry is said to be error for the reason that no proper foundation was laid. It appears from the testimony of the daughter that her father had no regular bookkeeping system; that the book in question was the only one he kept. In it he entered sales as he made them; that the entry was an original entry, was made by her father and was in his handwriting. Other testimony shows that the entry bears date of the day when the sale was made. We think this testimony fairly satisfied the rule with reference to the admission of books of account. The Seventh-Day Adventist Pub. Ass’n v. Fisher, 95 Mich. 274; Macomb v. Wilkinson, 83 Mich. 486.
The further claim is made in this connection that it was error because it placed before the jury the deceased’s version of the sale. The entry which the deceased made did not differ materially from the ordinary entry in books of account. It was unlike the
2. In that part of the charge in which the court attempted to state to the jury the claims of the defendant, he made use of the words: “They do not give any evidence that would bear directly.” Counsel construes these words as having reference to their claim that the stock was purchased by Buttars and the warehouse by Bogardus and¿ therefore, was a misstatement of fact. We do not so construe the language. We think it is a fair construction to say that this language had reference to another claim of defendants that Davis was owing Bogardus and, therefore, it was arranged that Bogardus should settle for the warehouse. The jury could not have been misled by this language as both Buttars and Bogardus testified without objection that it was a several purchase and the court later instructed them that the issue was whether it was a joint or several purchase.
3. The failure of the court to set aside the verdict because it was contrary to the great weight of the evidence is assigned as error and counsel urges that the claim is without merit and should have been disposed of by the court. Whatever may have been the private opinion of the trial judge concerning the merit of the claim he was confronted by testimony which made an issue of fact as to whether the purchase was a joint or several one, and it thereby became his duty to submit the question to the jury. They found as two former juries had found on the same state of facts. There was testimony which, if believed, would furnish a basis for this conclusion, and we think the trial court very properly refused to disturb it, on the ground that it
Dissenting Opinion
(dissenting). At the time of the transaction in question here, plaintiff’s decedent, who had conducted a store, kept a single book in which he made entries. The testimony is to the effect that on or about October 23, 1905, he made the following entry:
“October 23, 1905. Sold the warehouse and stock to Buttars and Bogardus for $1,474.32.”
Testimony for plaintiff tended to prove, also, the goods — stock—were inventoried on October 23, 1905, the value as' per' inventory being $474.32, and that whatever the transaction was the warehouse was valued at $1,000. In the opening statement of counsel for the plaintiff, it was conceded that $474.32 had been paid to plaintiff’s decedent. On the evening of October 23, 1905, when the inventory of stock was being taken, there were present in the warehouse plaintiff’s decedent, his daughter, who assisted in making the inventory, and the defendants. Upon leaving, defendant Bogardus said to plaintiff’s decedent, “We will settle this tomorrow.” Plaintiff’s decedent lived until March 6, 1908, in Pellston, Michigan, where, also, defendant Buttars lived during all of that time. Defendant Buttars at once took charge of the stock of goods,
Upon the part of defendant Buttars (Bogardus having been discharged as a bankrupt) a receipt made by plaintiff’s decedent was produced, which reads:
“$474.32. Pellston, Mich., 11/1/05.
“Received of A. H. Buttars four seventy-four and 32/100 dollars in full for stock and fixtures in warehouse in Pellston, Michigan.
“L. S. Davis.”
It appeared, and is not disputed, that Buttars took possession of and sold the merchandise, while Bogardus took, claimed title to, and sold the warehouse, and had the proceeds of such sale; that plaintiff’s decedent owed Bogardus when the transaction occurred some $1,200; that no credit was in fact given plaintiff’s decedent upon Bogardus’s books for the $1,000, the selling price of the warehouse; that this sum is unpaid unless by the warehouse; that during his lifetime plaintiff’s decedent never sought to collect the $1,000 from either Bogardus or from Buttars, who was a banker in Pellston. Plaintiff’s decedent borrowed money át the Buttars bank in July, in September, 1907, and once at a later date, the amount last borrowed being unpaid at the time of his death.
Everything else aside, in any view of the testimony, the verdict is opposed to the.great weight of it.
Assuming that the book entry was competent evidence, Macomb v. Wilkinson, 83 Mich. 486; In re Bresler's Estate, 155 Mich. 567 (although it is plainly not an entry made in the regular course of a business, and
With the plea defendant Buttars gave notice of special matter of defense as follows:
“That at the time of the maturity of the claim sued upon by the plaintiff, to wit, on or about October 23, A. D. 1905, the said Archibald Buttars and his codefendant, Charles Bogardus, paid to the said Lewis S. Davis, mentioned in plaintiff’s declaration, the sum of $1,474.32, and that $474.32 of that amount was in cash and the balance consisted of an account, notes and other indebtedness then owing by said Davis to defendant Bogardus; and also that, upon the payment of said $474.32 in cash, the said Davis released the said defendant Buttars from further liability to pay any portion of the remainder of said, sum sued upon.”
The plea of the general issue put in issue every material fact necessary to be proved by plaintiff. Is the notice an admission, available to plaintiff, of a joint sale? I do not think it can be so regarded.
The learned trial judge in giving reasons for denying a new trial adverted to the fact that this was the third trial of the issue, and said that he did not feel
