Docket No. 33 | Mich. | Jul 15, 1907
Lead Opinion
Plaintiff is an undertaker in Tuscarora, Nev. He brings this suit to recover for a casket and shipping box in which the body of one L. F. Harris, the father of defendant Allie and father-in-law of defendant Bert, was shipped from Tuscarora, Nev., to Armada, Mich. The suit was tried before the court, who made a finding of facts and rendered judgment in favor of plaintiff and against both defendants (who are husband and wife). Defendant Bert alone appeals, and asks a reversal of that judgment upon four grounds:
(1) There is no testimony tending to establish his liability.
(3) There was no evidence tending to prove the value of the goods furnished by plaintiff or the reasonableness of his charges.
(4) Appellant’s alleged agreement was “ a special promise to answer for the debt of another,” and was therefore void, because not in writing, as required by section 9515, 3 Comp. Laws.
Each of these grounds will be separately considered.
1. Was there testimony tending to establish appellant’s liability? In determining this question we should and do state the testimony most favorably to plaintiff. Harris, the deceased, was a member of the Armada Lodge of Odd Fellows. In Tuscarora he affiliated with the Tuscarora-Lodge of Odd Fellows. The Tuscarora Lodge looked after him during his last illness, and, when he died, its chief officer telegraphed notice of that fact to defendant 'Allie and to the Armada Lodge. The telegram to defendant Allie was delivered to appellant Bert, and he thereupon authorized the telegraph operator to have the body shipped to Armada at his expense. The operator sent this dispatch in the name, not of appellant Bert, but of defendant Allie. Very soon thereafter the operator, who was sécretary of the Armada Lodge of Odd Fellows, notified other officers of that lodge that appellant Bert had ordered the body shipped at his expense, and the chief officer of that lodge also sent a telegram guaranteeing the charges of shipment. This was done without consultation with appellant Bert, but as an act of kindness to him and upon the assumption that he would pay the expenses which it guaranteed. Before the body arrived, appellant Bert learned of the action taken by the lodge, and he said that the charges would be paid. The two telegrams, viz., the one sent by appellant Bert in the name of defendant Allie, and the one sent by the Armada Lodge, were duly received by the chief officer of the Tuscarora Lodge of Odd Fellows, who directed plaintiff to prepare the body for shipment and to ship it. The trial judge found that “the shipment was undoubtedly made
2. Was there evidence tending to prove the value of the goods furnished by plaintiff ? Plaintiff’s bill is as follows: •'
Metallic lined casket and trimming..............§125 00
Shipping box, embalming fluid, etc............... 12 00
§137 00
Upon this bill was credited $20, cash paid, leaving a balance of $117. Respecting this bill, plaintiff’s deposition contained the following testimony:
“ Q. Did you prepare Mr. Harris’ body for shipment home, and did you furnish casket, etc., for thát purpose ? • “ A. Yes, I did.
“ Q- What were your charges for the services, casket, etc., in such matter ?
“A. One hundred and thirty-seven dollars.”
The point is now made that the foregoing furnishes evidence of plaintiff’s “charge” for the articles furnished, but not of their actüal “value.” This point assumes that the charges testified to by plaintiff had no relation to value. This is placing upon that testimony a narrow and extremely technical construction. If this construction had been insisted upon during the taking of testimony, when plaintiff could have supplied the needed testimony, it is possible the court might have approved it. But it
“ In case the defendants, or any two or more of them, shall take any cause where they are joint defendants by appeal to the circuit court from the justice court, and
It seems to us very clear that the purpose of this act was to place cases appealed from justice’s court — as to the right of plaintiff to hold one of several defendants liable on his separate contract — on precisely the same footing as cases commenced in the circuit court; and we also think that this statute removes the objections to that practice referred to in Anderson v. Robinson, supra. This conclusion is in harmony with the decision of Wilson v. Medler, 140 Mich. 209" court="Mich." date_filed="1905-05-12" href="https://app.midpage.ai/document/wilson-v-medler-7943109?utm_source=webapp" opinion_id="7943109">140 Mich. 209.
4. Was defendant’s promise void, because not in writing? The claim that it is, assumes that it was a promise to pay the debt of his wife. This assumption is unfounded. According to the testimony of the messenger who delivered the telegram — and this testimony appears to have been credited by the trial judge — defendant made himself primarily liable. His was not, therefore, a promise to pay the debt of another, and the statute (section 9515, 3 Comp. Laws) relied on by his counsel does not apply.
In my opinion, the judgment should be affirmed.
Dissenting Opinion
(dissenting). Plaintiff, an undertaker, of Tuscarora, Nev., brought this suit to recover a balance alleged to be due from defendants for coffin, services, etc., furnished and rendered in preparing the body of L. F. Harris, the father of defendant Allie Hulett, for shipment from Tuscarora to Armada, Macomb county, Mich., for burial. Upon the death of Mr. Harris, J. E. Douglass, noble grand of a Tuscarora Lodge of Odd Fellows,
“Tuscarora, Nevada, November 37th. “Mrs. Alice Hulett, Armada, Mich.
“ Mr. L. H. Harris, your father, died here this morning at seven o’clock. How do you wish the remains disposed of ? If buried here, send age and place of birth.
“ J. E. Douglass.”
“Tuscarora, Nevada, November 37th, 1903. “Armada Lodge Number 493, I. O. O. F.,
“Armada, Mich.
“ Mr. L. H. Harris, of your lodge is dead. Telegraph instructions.
“ J. E. Douglass,
“N. G., Number 30, I. O. O. F.”
“Armada, Mich., November 37th, 1903. “To J. E. Douglass, Tuscarora, Nevada.
“ Send remains of L. H. Harris here. Charges guaranteed.
“Mrs. Alice Hulett.”
“Armada, Mich., November 37th, 1903. “J. E. Douglass,
“ N. G., Number 30, I. O. O. F.,
“ Tuscarora, Nevada.
“Send remains of Brother Harris here; charges guaranteed.
“ Burton Hodges, N. G.”
The telegram from Mrs. Hulett was sent at 5:47 p. m., and the telegram signed 4 4 Burton Hodges ” was sent at 7:55 p. m., November 37th. Mr. Wilder, the operator who sent and received the messages, was secretary of Armada Lodge. He sent the message to Mrs. Hulett, who lived in the country, by a Mr. Knickerbocker, who delivered it to Mr. Hulett. Knickerbocker reported: “Hulett instructed him to send a message to have the body forwarded,” and “ that he would pay the charges ; ’’ he said, “ Have Mr. Wilder have them forward the body on at my expense.” After sending the Hulett telegram, Mr. Wilder saw Dr. Hodges and reported the facts to him and other lodge members on the street, and the lodge
“Q. Who called you to attend the body of Mr. Harris and prepare it for burial ?
“ A. J. E. Douglass, as N. G. of Tuscarora Lodge, No. 30, I. O. O. F.
“ Q. What was the arrangement made as to your services, casket, etc. ?
“A. I was directed to do this work by Mr. J. E. Douglass. * * *
“ Q. What was your charge for the services, casket, etc., in such matter ?
“ A. One hundred and thirty-seven dollars.
“ Q. What amount has been paid you on that bill and by whom, was it paid for you ?
A. Twenty dollars by Mr. J. E. Douglass. * * *
“ Q. On what responsibility then did you do this work and furnish the casket, etc.?
“ A. On the responsibility of the telegram received by Mr. J. E. Douglass from Armada Lodge, I. O. O. F., directing the shipment of the body home.”
Mr. Douglass, noble grand of the Tuscarora Lodge, testified:
“ I stated the purport of those telegrams to Mr. W. S. Hillman.
‘1 Q. Upon what telegram or telegrams received by you was the responsibility taken of ordering the body of Mr. Harris prepared for shipment and there shipped ?
“A. On telegram from Armada Lodge.
“ Q. Who ordered Mr. Harris’ body prepared and then sent to his home ?
“A. I did, on the strength of telegrams from Armada Lodge.
“ Q. To whom was such order given ?
“A. ToW; S. Hillman.”
The body of Mr. Harris was shipped by express, charges prepaid, to Mrs. Hulett, and the bill was made out to her. Mr. Hulett paid to the Armada Lodge $100 received by Mrs. Hulett from a miners’ union, and the lodge paid $30
Among others, the circuit judge made the following findings:
“No credit was ever extended by the plaintiff to either of the Huletts, nor did he know them. The shipment was undoubtedly made and the other expense incurred upon the faith of the Tuscarora Lodge, who in turn looked to the Armada Lodge. But this would not preclude the plaintiff from bringing suit and recovering against any one actually liable. The expense was incurred directly upon the personal order of Bert Hulett.
“ So far as the question of agency between husband and wife is concerned, I have no doubt but that, where a husband orders funeral arrangements made for a wife’s deceased father, he is to be held personally liable unless it affirmatively appears that , all parties were informed distinctly that he was acting merely as his wife’s agent and did not intend to become personally responsible.
“ In my opinion, neither the doctrine of estoppel nor the statute of frauds is involved in this case at all.
‘ ‘ I have carefully examined all the briefs submitted to me, and can come to no other conclusion than that both the defendants are liable.”
Plaintiff’s counsel contend:
“ These facts present a simple case of agency, and the fact that Hulett, as principal, was not disclosed until after the services were performed and the body shipped, does not prevent a recovery from him, when it is learned that he was the undisclosed principal who authorized the expenditure and received the benefit of the services.
“ The undertaker knew, through the Tuscarora Lodge, that he was acting for a Michigan family in sending a dead father home.
“ The name of the head of that family he did not know, but the wife and local lodge had telegraphed that the charges would be paid, and on the strength of these telegrams plaintiff acted. We have now. shown that appel
“Not only did defendant Hulett expressly authorize the incurring of these expenses, but he has since ratified them by his conduct, and is now estopped from denying h'is liability.”
It is clear that no contract relations existed between the defendant Bert Hulett and the plaintiff. Neither did any contract relations exist between Bert Hulett and the lodge at Tuscarora or at Armada. So far as the Armada Lodge was concerned, he did not request it to guarantee payment of the charges, nor did he know that it had done so until afterwards. He did not communicate to the lodge his action nor authorize the telegraph operator to do so, and the most that can be claimed is that he ratified the action of the lodge after he learned of it. The operator was not the agent or representative of Mr. Hulett, and had no power to bind him; he was merely the messenger to transmit the message sent to the Tuscarora lodge. Neither was the operator the agent of the plaintiff or the Tuscarora Lodge, and anything said to him through Knickerbocker was of no avail to confer any rights upon the plaintiff except as transmitted to the plaintiff and acted upon by the plaintiff. This was not a transaction with an undisclosed principal. The principal was disclosed by the telegram. Plaintiff understood that Mrs. Hulett was the principal; he made out his bill to her, and the body was shipped in her name. Both of the telegrams were stated to plaintiff, and he rendered the services and furnished the coffin, etc., as held by the court, upon the faith of Tuscarora Lodge, which was his employer, and which, in turn, relied upon Armada Lodge. I do not think that it can be said, “ The expense was incurred directly upon the personal order of Bert Hulett,” so far as the plaintiff is concerned. The expense was in-
This case is the converse of Downing v. Buck, 135 Mich. 636" court="Mich." date_filed="1904-02-16" href="https://app.midpage.ai/document/downing-v-buck-7942456?utm_source=webapp" opinion_id="7942456">135 Mich. 636. In that case the defendant did not know that the plaintiff was rendering services for him, and it was therefore held that he was not liable for such services. In this case the plaintiff did not know that he was rendering services for the defendant Bert Hulett, but plain
It is contended by défendant’s counsel that there was no evidence of the value of the articles furnished or services rendered, and that for this reason a judgment should have been rendered in his favor. Upon this point, the court said:
“ The proofs show that Mr. Harris died; that his body was prepared for burial by the plaintiff; that it was shipped to Armada in a casket furnished by him; it arrived there and was buried in the casket provided by the plaintiff; it is, I take it, practically undisputed that all the services charged for were furnished. Defendants saw and had opportunity to inspect the materials, quality, etc., of the goods provided. These facts, in connection with the deposition of W. S. Hillman, it seems to me, sufficiently cover the ground.”
The only testimony upon the .question of value was that of the plaintiff, above quoted, that his “charge, for the services, casket, etc.,” was $137, and the following from the testimony of Mr. Hulett:
“Q. What is the balance due at the present time ?
“A. I believe that it is a hundred seventeen dollars and a half.
“Q. That is the correct amount due on the account ?
“A. That is what they claim on it.”
“ How else could the prices of broadcloths, linen, cambric, etc., of different degrees of fineness, be ascertained after a length of time ? A contrary doctrine would render our üsage of small advantage to the mercantile or mechanical part of the community. * * *
“ The necessity of the case, however, which gave birth to our practice in this particular, by no means warrants that entries in day books should be considered as evidence of money lent or cash paid.”
I do not think this case is in point. Books of account are only admissible upon proof of their correctness, and, if the case cited holds to the contrary, which I do not understand to be the case, it would be contrary to numerous decisions of this court. Cameron Lumber Co. v. Somerville, 129 Mich. 552" court="Mich." date_filed="1902-03-04" href="https://app.midpage.ai/document/cameron-lumber-co-v-somerville-7941526?utm_source=webapp" opinion_id="7941526">129 Mich. 552. In my opinion, the case of Farrington v. Wright, 1 Minn. 241" court="Minn." date_filed="1856-01-15" href="https://app.midpage.ai/document/farrington-v-wright-6640062?utm_source=webapp" opinion_id="6640062">1 Minn. 241, is directly in point as to the construction which should be given to the plaintiff’s testimony. In that case, the defendant in his answer admitted all of the material allegations of the complaint, but alleged by way of counterclaim that “ the defendant charged for his commissions thereon twenty-five dollars, leaving a balance of $268 in favor of the plaintiff.” The court say:
“The counterclaim for commissions is not adequately
The testimony of the plaintiff was taken by deposition, apparently at Tuscarora, Nevada, and there does not seem to have been any cross-examination. If the value of “ the services, casket, etc.,” for which the plaintiff’s “charge” was $137, had been known to him to have been only $50, an indictment for perjury could not have been maintained upon this testimony, because, as said by the supreme court of Minnesota, ‘ ‘ he does not allege ( swear) that the charge is true or that the services for which he made the charge were worth that or any other sum.”
Neither do I think it ought to be held that the defendant acquiesced in a supposed erroneous construction by plaintiff’s counsel of the effect of his testimony. I know of no rule of law which requires defendant’s counsel, during the course of the trial, to inform plaintiff’s counsel that, although he thinks he has proved his case, he has failed to do so. Defendant’s plea put every material fact in issue. The burden of proof was upon the plaintiff to establish every material fact by at least prima facie evidence. He failed to do so, and the defendant was, I think, within his legal rights in raising the question as he did at the close of the case. At the close of the testimony, the record contains the following:
“And after such testimony was given, the cause was
I think also that the testimony of Mr. Hulett on cross-examination was notice to plaintiff’s counsel that he did not intend to admit that the balance claimed to be due was correct. He testified: •
“ Q. What is the balance due at the present time ?
“A. I believe that it is a hundred seventeen dollars and a half.
“ Q. That is the correct amount due on the account ?
“A. ,That is what they claim on it.”
' Until the plaintiff put in some evidence of the value of the services and materials, defendant was not called upon to produce testimony upon that subject.
The judgment should be reversed as to the defendant Bert Hulett, and new trial granted.