Fellows v. Thrall

85 Mich. 161 | Mich. | 1891

McGrath, J.

This cause was commenced in justice’s court. The plaintiff declared orally on all the common counts. Defendant pleaded the general issue. Judgment was rendered against plaintiff, and he appealed to the circuit, where judgment was rendered for defendant, and plaintiff appeals.

The case was tried in the circuit by the court, and comes here upon findings and exceptions to the court’s conclusions of law only. The court finds :

1. That under the date of April 18, 1888, Clarence A. Fellows, the plaintiff in this suit, Churchill H. Thrall, the defendant, Flavius J. Groner, and Wilson W. Deming entered into an agree, ment in writing, whereby they became copartners in business under the firm name and style of the Big Rapids Lumber Company; that by the terms of said articles of copartnership it was agreed, among other things, that the copartnership was “ owing the sum of $2,500 each to said Wilson W. Deming and C. A. Fellows for moneys at this date advanced by them as a loan to said copartnership, which said indebtedness to said Deming and Fellows it is agreed and understood shall be repaid to them, with interest at the rate of six per cent, per annum, out of the first moneys accruing from the profits of said copartnership business after paying and discharging all other indebtedness and obligations outstanding against said copartnership, and not before that event shall said Deming and Fellows be repaid the aforesaid loan. ”

“2. February 5, 1889, Churchill H. Thrall, the defendant herein, with the knowledge and consent of his copartners, sold and conveyed to Walmsley his entire interest in said firm, who at said time became a member thereof in place of said Thrall, subjecting himself to the same liabilities, and assuming his proportionate share of the liabilities of said firm, except the liability of §2,500 due C. A. Fellows, and §2,500 due to W. W. Deming, mentioned in the aforesaid copartnership agreement, amounting in the aggregate to the sum of §5,000.

“3. Under date of February 9, 1889, Churchill H. Thrall, the defendant, wrote a letter to the plaintiff, which was received by him, wherein he stated that Mr. Walmsley had closed a contract with him for the purchase of his interest in the Big Rapids Lumber Company, and that Mr. Walmsley was to pay him on the 1st day of March, and that he then would pay him, the plaintiff, and Mr. Deming, his share of the $5,000 advanced to the Big Rapids Lumber Company, which letter was signed by the defendant.

“4. Under date of March 1, 1889, Churchill H. Thrall, who had retired from said firm, which was before that timfe indebted to said Fellows and Deming in the sum of $5,000, as last aforesaid, computed his proportionate share of said indebtedness, which, with interest thereon, he made $1,037.83, and procured from the Northern National Bank of Big Rapids a certificate of deposit for said amount, payable to his order, which he indorsed over to said Feljows and Deming in the following words; ‘Pay to the order of Wilson W. Deming and Clarence A. Fellows, in full payment of C. H. Thrall’s share of the $5,000 advanced by said Deming and Fellows to Big Rapids Lumber Company, as per written articles of copartnership of April 18, 1888, between said Deming, Feliows, Groner, and Thrall,’ signed, 1C. H. Thrall,’ — which said certificate was mailed to Fellows, and received by him, and indorsed by both Fellows and Deming, who received the money thereon.

“5. Under date of March 5, 1889, Fellows acknowledged receipt of aforesaid certificate of deposit, but claimed that the amount was incorrect; to which, under date of March 8, Thrall replied insisting upon the correctness of the amount, but, if not, they would get together, and ascertain the correct amount.

“ 6. June 16, 1889, Deming assigned to Fellows, the plaintiff herein, his claim of $2,500; and July 2, 1889, at the time this suit was commenced, said firm as originally formed, of - which both plaintiff and defendant were members, was indebted to said Fellows in the sum of $5,000. No accounting had ever been had between said copartners, nor between said Fellows and Thrall, with reference to the indebtedness, except the computation made by Thrall as aforesaid, to which Fellows dissented; but notwithstanding, both he and Mr. Deming indorsed the certificate of deposit sent to them as aforesaid, and retained the money thereon.

“7. I find, as a conclusion of law, that the indebtedness aforesaid, nor any portion thereof, never became the individual indebtedness of the defendant, Churchill H. Thrall, and that said defendant in his individual capacity cannot be held liable thereon except to the extent already paid.”

The case is clearly within the principle laid down in Learned v. Ayres, 41 Mich. 677. The original indebtedness rested in the partnership agreement. It was payable from the profits of the business, but at no definite time, by the firm, to two of its members. Nothing occurred to change the form of the debt. Defendant’s letter of February 9, if a promise, was one wholly without consideration. It lacked the essential element of an account stated, viz., a statement of the account. The minds of the parties never met as to the amount promised to be paid, as the subsequent conduct of the parties ■clearly shows.

The judgment is affirmed, with costs.

Ohamplin, C. J., Morse and Grant, JJ., concurred. Long, J., did not sit.