Springer v. Fuller

196 Mich. 628 | Mich. | 1917

Fellows, J,

(after stating the facts). The point is made for the first time in the brief in this court that, inasmuch as defendant is a resident of Detroit, the justice of the peace of Highland Park, before whom these proceedings were instituted, had no jurisdiction; therefore the circuit court on appeal had no jurisdiction, and the judgment should be set aside. The question is one of jurisdiction of the person. The defendant appeared in justice’s court without objection to the jurisdiction, and pleaded the general issue, he took a general appeal to the circuit court, where the case was tried, and no question of jurisdiction was there raised, either upon the trial or in the motion for a new trial. There is no assignment of error raising the question. Obviously the question is not before us.

Objection is made that plaintiffs’ opening statement was exceedingly prejudicial. It is not pointed out in the brief wherein plaintiffs’ opening statement differed from the facts proven upon the trial, and we have been unable to find anything in the opening statement that plaintiffs did not have a right to prove on the trial, or that in any way prejudiced defendant.

Plaintiffs are copartners, doing business under the name of “Artcraft Screen Company”; they have complied with the provisions of Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, §§ 6349-6353). Wheeker & Young is a partnership^ and had not complied with the provisions of Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6354-6359). There is no claim that plaintiffs were aware of this failure to comply with the statute. It is claimed that the original contract of sale from plaintiffs: to Wheeker & Young is void, and should not have been received in evidence. It was said by this court in Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697), in considering the act of 1907:

“As this act involves purely business transactions, and affects only money interests, we think it should be construed as rendering contracts made in violation of it unlawful and unenforceable at the instance of the offending party only, but not as designed to take away the rights of innocent parties who may have dealt with the offenders in ignorance of their having violated the statute.”

In the instant case Wheeker & Young are not parties, and plaintiffs themselves have in all regards complied with the law; they are claiming no rights through Wheeker & Young. They are claiming the right to retake their own property, and, to establish that the screen still belonged to them, had the right to show that they retained title in their agreement with the copartnership. They had no knowledge that Wheeker & Young had not complied with the act of 1913; and, while parties failing to comply with the provisions of this act may be penalized, innocent parties who have dealt with them, in ignorance of their want of compliance, cannot be. The statute has no application to the instant case.

Defendant requested the court to direct a verdict in his favor. This the court refused to do; in this there was no error; not only was there testimony that would justify the jury in finding that defendant personally had possession of the screen, and without any color of title, or right to possession, refused to surrender it and kept it for his own use, but there was also testimony that when plaintiffs and plaintiffs’ representative demanded possession of the screen, and talked with defendant about it, they were led by him to believe that he personally had possession of it and refused to give it up, and that plaintiffs did not know that defendant made any claim that the corporation had possession, until the trial in the circuit, and after they had incurred the expense of the litigation. If the latter was true, the defendant was estopped from setting up possession in the corporation. Cadwell v. Pray, 86 Mich. 266 (49 N. W. 150). Plaintiffs were entitled to have both theories submitted to the jury, and defendant was entitled to have his theory that the action should have been against the corporation, instead of defendant, also submitted to the jury. The testimony being in conflict the court could not say, as matter of law, which party was right; that was exclusively for the jury.

The remaining assignments of error discussed in the brief relate to the requests to charge and the charge as given. It is urged that the court did not fully, state defendant’s theory. The charge was concise, but fairly stated the claims of the parties. After stating their claims, and before proceeding further, the court turned to counsel and asked if he had correctly stated their claims; one suggestion was made by defendant’s counsel, which was accepted by the court, and no further suggestion was made. If the court had not fully covered defendant’s theory, fairness to him required that his attention should then be challenged to any omission, and particularly where • he asked counsel if he had correctly given his claim. Proulx v. Bay City, 143 Mich. 550 (107 N. W. 273); Davis v. McMillan, 142 Mich. 391 (105 N. W. 862, 3 L. R. A. [N. S.] 928, 113 Am. St. Rep. 585, 7 Am. & Eng. Ann. Cas. 854); Wolf v. Holton, 110 Mich. 166 (67 N. W. 1082). Not having taken such course, defendant cannot be heard to complain in this court.

Defendant’s seventh assignment of error is as follows :

“That the court erred in his charge to the jury and did not leave to the jury to decide, if it was a question for the jury, the vital issues in this case.”

This assignment of error is too indefinite. We have, however, examined the charge and discover no error in it. The case was fairly submitted to the jury, the theories of both parties stated, and the law controlling ■the case correctly given. We have carefully considered all the questions discussed in defendant’s brief, and are unable to discover any reversible error on this record. The judgment is affirmed, with costs.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.