Hatzenbuhler v. Lewis, 51 Mich. 585

Hatzenbuhler v. Lewis

51 Mich. 585 | Mich. | 1883

Lead Opinion

Campbell, J.

Plaintiff sued defendant on the common counts, and recovered before a justice. Defendant appealed. On the trial at the circuit plaintiff undertook to recover for goods sold defendant by a firm of Robinson & Hatzenbuhler. Plaintiff’s claim was that the firm bad become dissolved, and that it was understood be was to have all the assets. No assignment was ever made, and it does not appear that any entries were made, or anything done beyond the arrangement or understanding in question. No notice was shown of any dissolution as given to defendant, *586who produced a receipt in full from Robinson, which was/ given in settling up some old dealings about which there was some question how far they entered into firm dealings-The court below directed a verdict for defendant, giving as-a reason that no such dissolution was shown as would authorize the suit.

JECosmer, for the motion,

cited Kelly v. Waters 31 Mich. 404; Gregory v. Snell 31 Mich. 500; Sojoer v. Mills 50' Mich. 15, and Wiloox v. Railroad Go. 43 Mich. 584.

We cannot reverse the judgment if this direction was-right, whether the precise reason did or did not involve an opinion on facts. We do not feel quite sure that the conclusion of the judge was not warranted as applicable to the-case as it stood. But there can be no doubt of the insufficiency of the declaration in regard to the assignment, and this may have caused some difficulty. The plaintiff declared simply'on the common counts, the effect of which, on such a cause of action as the peculiar one relied on upon the trial, was to assert that the goods were sold and delivered by plaintiff, and not by the firm. There is no reference to any assignment in any paper returned by the justice. The evidence, therefore, did not tend to prove the cause declared on, and the verdict could not have been sustained on error if given for plaintiff and properly complained of.

The judgment must be affirmed with costs.

The other Justices concurred.

Rehearing

Afterwards at the same terra a motion was made for a rehearing. Submitted October 30. Denied October 31.

OaMpbbll, J.

A motion for.a rehearing being made on the ground that this case comes within some prior decisions, on which reliance was allowed on the common counts, we do not see their applicability. In those cases there was an assignment in fact to a third person, and not to a co-partner, and there was a joroper claim informing the defendant *587brought directly to his' notice. In this case there was no express assignment, and without notice of dissolution the defendant had a right to deal with either partner. The declaration practically alleged.a sole transaction, and the plaintiff- sued as an original creditor of Lewis, who would have been a proper co-plaintiff with Nobinson, but who could not sue as one of the firm and deprive Lewis'of any of his privileges as a debtor of the firm. When sued in this way we do not think he was bound to meet such a peculiar claim as that relied on in the testimony, and the circuit court could not substantially aid plaintiff to change the issue as made before the justice.

The motion is denied without costs.

The other Justices concurred.