Morrill v. Bissell

99 Mich. 409 | Mich. | 1894

Long, J.

Plaintiff, doing business as C. A. Morrill & Co., commenced an action of assumpsit in the circuit court for the county of Delta upon an account for goods sold and delivered. The suit was by declaration upon the common counts. Annexed to the declaration was a statement of account, with an affidavit attached, stating that it was a true copy and statement of an open account against Frank Bissell and Murray K. Bissell, formerly copartners in business under the firm name of Bissell Bros.; that there was then due to said C. A. Morrill & Co., the purchasers of said account, over and above all legal set-offs, the sum of $25.20. Annexed to this statement was also an assignment of the account from R. Stafford Co. A further account was annexed, of $157.75, with C. A. Morrill &, Co., with a similar affidavit attached.

The plea was the general issue, with notice that Murray K. Bissell was not a copartner in business with Frank Bissell at the time the debt was contracted, and had not been for a long time prior thereto; that plaintiff had notice thereof; and that, if said goods were purchased, they were bought by Frank Bissell individually, and upon his sole account. An affidavit of Murray K. Bissell was attached to this notice, denying that the copy of the account was a true and correct statement of the account of the plaintiff against him, and denying that there was due from him to the plaintiff any’sum whatever.

On the trial the court directed a verdict in favor of the plaintiff for the amount claimed.

The first assignment of error relates to the objection to the introduction of certain evidence under the declaration, on the ground that it does not aver the assignment of that part of the account transferred by R. Stafford Co. There was no error in the admission of testimony. It is true that it has been held that, in assumpsit upon the common counts, a plaintiff who sues as assignee must allege the assignment in the declaration, and prove it; but here the assignment was attached to the account, and the account and assignment annexed to the declaration by which the suit was commenced, and served upon the defendants. This constituted the plaintiff's bill of particulars, and was a part of the declaration, rendering it unnecessary further to aver the assignment in the declaration. Snell v. Gregory, 37 Mich. 500; Kelly v. Waters, 31 Id. 404.

The affidavit and statement of R. Stafford Co.'s account are not denied or referred to in the affidavit of Murray K. Bissell, and therefore became prima facie evidence of the correctness of the account. How. Stat. § 7525.

It appears that the plaintiff had dealt with the firm of Bissell Bros, at a time when it was admitted that a partnership existed. No notice of dissolution is shown to have been given. The business was conducted under the name of Bissell Bros, at the time the goods were sold, the same as before the time Murray K. claims to have gone out of the firm. Letters were written with the heading of Biseell Bros., and with M. K. Bisselhs name appended thereto, as before the time of the claimed dissolution; and to the world he was, ostensibly, a partner. The court very properly directed the verdict in favor of the plaintiff. We find no error in the record.

Judgment affirmed.

The other Justices concurred.