97 Mich. 72 | Mich. | 1893
Davis & Rankin, engaged in the business' of erecting creameries, executed an agreement to erect one of their creameries for a specified price. It was signed on their behalf by one M. J. Briggs, their agent. The contract was signed by a - number of residents of the vicinity, each undertaking to pay to Davis '& Bankin the amount set opposite his name. Defendant signed the paper, affixing opposite his name the sum of $100. Upon completion of the work defendant refused to. pay, and this action was brought. The defendant filed a plea of the general issue, accompanied by an affidavit denying the execution of the writing- He offered testimony tending to show that he signed the' writing, and delivered it to one Carbaugh, under the following circumstances: Carbaugh, a neighbor,
1. That the pleadings did not warrant the defense made.
2. That defendant’s acts estop him from making such a defense.
3. That such defense could not be made without showing that Carbaugh had authority from Davis & Rankin to make such an arrangement as defendant claims.
4. That certain testimony offered to show that Carbaugh made a similar arrangement with one Barnard was inadmissible.
5. That the reinstating" of such evidence after it was stricken out was error, no opportunity for cross-examination being given.
1. Plaintiffs’ counsel maintain that they were entitled to a special notice of the defense. Under the plea of the general issue, a defendant may always show that the agreement sued upon was not made. This defendant says: “It is true that I signed a paper, but I never authorized Davis & Rankin to treat it as a contract. I never had any negotiations with them. Carbaugh and I had some talk about such a contract, but I did not agree to the use of the writing as a contract. At that time it was not signed by anybody but myself. It lacked the essential elements of a contract when I last saw it.” If this is true, it is a complete defense, so far as the question of pleading is concerned, for it is a mere denial of what plaintiffs are required to prove.
2. The claim that defendant should be estopped by
3. The proposition that defendant
4. Some testimony was introduced by defendant tending to show that Carbaugh made an arrangement with one Barnard similar ’ to that claimed by the defendant. If this Avas introduced to shoAv that plaintiffs" agent had authority to do this, it was inadmissible. It was proving authority by the mere act of the agent, which is not permissible. If it was to raise an inferen'ce that the agreement alleged by defendant was made, from the fact that a similar one Avas made with Barnard, it was inadmissible. It is claimed' that no exception was taken to this, but the counsel had a right to understand from the remark of the court that he was given an exception.
For this error the judgment will be reversed, and a new trial ordered.
The fifth request was as follows: “If the jury find that the plaintiffs in this case had no knowledge of the contract as claimed by the defendant, but received the contract in good faith, relying on its genuineness as shown upon its face, and went on and erected the building, relying thereon, then, in such case, the defendant is liable upon his contract, and your verdict should be for the plaintiffs.”
In reinstating- the testimony the court said: “ Let it be considered in the case. I will (give you an exception if you wish.”