14 Mich. 392 | Mich. | 1866
From the record it appears that Murphy sought to recover against Sinclair, in the Court below, for certain moneys which the latter had received from him and failed to dispose of
The defendant introduced evidence tending to show that plaintiff and Samuel Sinclair had never dissolved partnership, and that the latter had not consented to the change by which the business was being conducted in the name of the plaintiff alone. Also, that Samuel Sinclair had requested him to look after said Samuel’s interest in said sutler’s business, and see that it was taken care of, and that the moneys so received by defendant belonged to said business.
On this evidence the defendant asked of the Circuit Judge
We do not see how the question of partnership can be open to defendant, on the case appearing here. The fact that the plaintiff was carrying on the business in his own name, was not disputed, nor was it denied that defendant received the moneys from him on the distinct understanding that they should be placed to the plaintiff’s credit. The dealing of the defendant was not with any partnership, but with the plaintiff as an individual; and having agreed to account for the moneys to the jfiaintiff, he cannot be permitted to retain them in violation of this understanding, while the plaintiff -litigates with him the right of some third person to an interest therein, — a right in which the defendant is in no way concerned. Whether Samuel Sinclair still continued a partner or not, would be immaterial in any controversy between the plaintiff and mere wrong-doers; for having the rightful possession of the property as well as an interest in it, he would be entitled to maintain his possession against any one asserting no right in himself; and there can be no doubt that this jtossession and interest would be ample consideration to support the promise of any one who, on receiving any of the property from him, should promise to return it. Defendant does.not claim to have acted on behalf of Samuel Sinclair in obtaining this money; nor does his testimony show that his agency would have warranted any interference in the business. As to the dealings between the plaintiff and Samuel Sinclair, the defendant was, in law, a stranger; and he has no right to draw them into controversy for the purpose of defense to his own contract. And there was some evidence tending to show that this defense was entirely an afterthought; his first claim being that "the money was his own. But if he intended to set up any such claim when he obtained the money, we think he is
We do not think the charges of the Circuit Judge had any relevancy to the case, or could in any way have prejudiced the defendant; and whether erroneous or not, the judgment should not be reversed for the errors assigned.—Clark v. Moore, 3 Mich. 55 ; Cummings v. Stone, 13 Id. 70.
The Judge was also asked to charge the jury that, if the moneys deposited in the hands of the defendant belonged to Samuel Sinclair and the plaintiff, as partners, and that defendant was agent of Samuel Sinclair, the defendant could lawfully do with the money, as such agent, whatever Samuel Sinclair could do. To make this request relevant, the defendant should have put in evidence tending to show his agency; but as nothing of the kind appears, and he did not assume in any way to be acting as agent when he obtained the money, or when 'he refused to account for it, we think the Judge should have declined to give any instruction upon the point.
The judgment of the Court below should be affirmed, with costs.
I think there was testimony enough in the case to make the various charges and refusals to charge complained of pertinent. There was no dispute about the original existence of a partnership between Murphy and Samuel Sinclair, which must therefore be presumed to exist until dissolved. There was no dispute but that the money received by Robert P. Sinclair belonged to the business.of the partnership, if any such partnership existed at the time. Whether the firm continued, was, upon the evidence, an open question for the jury. There was evidence, which they might have been disposed to credit, that R. P. Sinclair was authorized to act for his brother, and was