106 Mich. 102 | Mich. | 1895
Plaintiff sued Edward Portere in justice’s court to recover a balance of $153.67 for lumber alleged' to have been sold by plaintiff to him, and used in the construction of a house for Mr. Portere. Mr. Portere died after ain appeal had been taken to the circuit court. The defense was that Mr. Portere made a contract with plaintiff and one Krebs by which they agreed to furnish the material and build the house for $455, and that he had paid the contract price. Plaintiff gave evidence tending to show that he sold the lumber to Mr. Portere; that he was not in partnership with Krebs; and that Mr. Portere had paid him $100. The defendant gave evidence tending to support her theory. Verdict and judgment were for the defendant.
“If you find that deceased, Edward Portere, bargained for this lumber, and received it from plaintiff, and used it or had it used in his house, he is bound to pay for it; and, if it has not been paid for, plaintiff is entitled to recover.”
The objection to this request is that it eliminates the theory of the defendant. Mr. Portere did bargain for this lumber, and it was used in his house. He claimed to have paid Krebs and plaintiff for it. This request, if given without explanation, would have made him liable, not
“If a witness who was sworn and testified in justice’s coutd testifies differently on the trial in this court, the jury may take that fact into (consideration in determining what credit is to be given to that witness* under all the circumstances.”
There was no witness to whom this language could apply. Plaintiff insists that it is applicable to one Josie Portere, who was a witness in both courts, and who in the circuit court testified to a conversation with plaintiff to which she did not testify on the trial before the justice. She frankly admitted this, and said that the reason she did not then testify to it was because the question was not asked her. This did not create any reflection upon the credibility of the witness, nor justify the instruction requested.
“If you find that there was an agreement by the plaintiff to sell this to the defendant in his lifetime, and that the plaintiff did not enter into an agreement with Mr. Krebs as a partner, whereby they were to divide the profits, then your verdict will be for the plaintiff. If, on the other hand, you believe that he did not sell this lumber to Mr. Portere, that it was to go to Mr. Krebs, and that Mr. Krebs was to build and deliver this house, and turn it over to Mr. Portere for $455, then your verdict, under the law, must be for the defendant. Weigh the evidence carefully, do what is right under the premises, and bring in a verdict in accordance with the law and evidence in this case.”
The issue in this case is so simple, the testimony is so brief, and the merits of the case so clear, that we do not
The judgment is affirmed.