226 N.W. 224 | Mich. | 1929
Defendant, John C. Mann, owned the Douglas House in Houghton. He entered into an agreement which contemplated sale of this hotel property to Douglas House Company, a corporation. The corporation entered into possession and *535 management, and began making improvements preparatory to opening and operating. Mr. Mann continued to live at the hotel.
Plaintiffs, copartners, were engaged by the corporation to do plumbing and to furnish material, which they did, and all of which was charged on plaintiffs' books to the corporation. Plaintiffs filed as against the corporation statement of lien and later a bill to enforce it, which was dismissed. Then plaintiffs began this action in assumpsit to recover of Mr. Mann, asserting as against him a promise to pay. The testimony to support the averment of promise is that Mr. Mann gave certain orders or directions with respect to the work. This is explained by showing that, of the persons about the hotel, Mr. Mann alone knew of the location and installation of heating pipes, etc., and that consequently his advice was sought. It is not disputed that Mr. Mann told plaintiffs that he was not to pay. Plaintiffs' direct testimony leaves the time of making such statement somewhat indefinite but on cross-examination this was corrected and made definite and the time fixed as before the furnishing of labor and materials for which recovery is sought.
Plaintiffs had verdict and on decision of a reserved motion to direct verdict the court ordered judgment for defendant on the ground that the evidence presented no issue of fact. Plaintiffs bring error.
We are in accord with the trial court, who based his decision on Steinberg v. Builders Lumber Wrecking Co.,
"But the clarification of ambiguous testimony creates no issue of fact for the jury. West v. Railroad,
And on Kurtz v. Railroad Co.,
"It is a rule of law that testimony by way of correction of a misstatement does not make an issue of fact."
Judgment affirmed.
NORTH, C.J., and FEAD, FELLOWS, WIEST, McDONALD, POTTER, and SHARPE, JJ., concurred.
