103 Mich. 6 | Mich. | 1894
For a statement of the facts herein, reference is made to 91 Mich. 495.
Twelve of the sixteen assignments of error relate to the admission of testimony, two to remarks of counsel made during the trial, one to instructions given by the court to the jury, and one to the refusal to direct a verdict for defendant.
1. The first assignment alleges error in permitting an .answer to a given question, but from the record it does mot appear that the question was answered.
2. Plaintiff was asked what was said, if anything, about 'Chase’s partnership, and what was the extent of it. The •conversation referred to was that in which the representations complained of were made. Plaintiff was a purchaser of defendant’s interest in the business. It was entirely competent to show that Chase’s interest was a merely nominal interest.
“Did you employ Mr. Burhans’ son as bookkeeper?
“ Where was the business transacted, — in what building?
“ Where did he [Burhans] keep his office?
“What knowledge did Burhans have, relative to the collection of these claims?
“ State whether Burhans talked with you about these claims, and the collection of them, and what parties were owing them during this time.
“ When you went out to make collections, state how you were informed of the business, — that is, of the accounts to be collected; where did you go for information as to what you were to do?”
On cross-examination of plaintiff, the following questions were asked:
“ Q. What security did Burhans take, if any, from you and Chase, that you would pay this $6,200 and some odd dollars you had assumed to pay?
“A. He didn’t take any security, so far as I know.
“ Q. Burhans turned these accounts over to you, and ■didn’t have the scratch of the pen that you would carry out your agreement with him, did he?
“ A. No, sir; I don’t think there was any written contract.”
Plaintiff had already testified in his direct examination that certain of the accounts assigned to him had been collected by one Long, one of defendant’s agents, before the transfer. On cross-examination he was asked as to his personal knowledge of that fact. He was further asked as to the diligence used in making collections, and as to his information as to the responsibility of certain of the parties indebted upon the assigned accounts. As bearing upon the question of defendant’s security, plaintiff stated that it was one of the conditions of the sale.that defendant’s son should be employed as bookkeeper; that he was so employed, and defendant was in a situation to be advised ■of the collection of accounts, and the appropriation of the
4. Error is assigned upon the remarks of counsel made-during the discussion of the questions relating to the admissibility of certain testimony offered by plaintiff. We-find nothing in the statements made which was calculated, to prejudice the defendant.
5. The eighth assignment cannot be considered. Objection vp as made, after answer given, to going into the inquiry. The inquiry on that line ceased, and no motion-was made to strike out.
6. A motion was made, after the cross-examination, to-strike out all the testimony of a witness “in regard to-these accounts about which he testified, because there is no showing that they were the accounts turned out to the firm of Chase & Totten, but, on the contrary, there is evidence that they were not; that some of them were accounts for goods sold by " the witness after the transfer. The transfer to plaintiff was made in the month of February, and witness went into plaintiff's employ early in March. The list of accounts was taken from the books, and giving to him for collection. The witness says that they were “what we called 'back numbers' at that time."' He commenced trying to collect “from the first start," as he expresses it. The motion covered all of the accounts-in respect to which he testified. If some of them were-accounts for goods sold by the witness, the motion ought to have been confined to them. There was evidence that the major portion of them were old accounts.
8. The plaintiff proceeded upon the theory that defendant had guaranteed the prompt payment of the accounts transferred. The court instructed the jury that, if such was the agreement, plaintiff was entitled to recover such accounts as were not paid promptly, and that in such case plaintiff was not required to test the responsibility of the debtors by proceedings to enforce collection; that if, however, the accounts were simply represented as good and collectible, then the duty of reasonable effort and diligence in the collection of the accounts was assumed by plaintiff, and must be exercised before he could maintain this suit; that if they found that the accounts were good, and could have been collected by the exercise of ordinary diligence and care, their verdict must be for defendant. Defendant insists that the testimony of the defendant was opposed to either theory, and that the charge, as given, excluded from the consideration of the jury defendant’s theory,— that no representations whatever had been made. Counsel seem to overlook the fact that nine requests were presented on behalf of defendant, all but two of which were given; that error is not assigned upon the refusal to give the two not given; and that one of the said requests so given was that, if the jury believed the testimony of the defend
9. The fifteenth assignment relates to language used by counsel for plaintiff in his address to the jury. We are not prepared to say that the facts disclosed by the record would exclude the inferences which counsel thought them susceptible of.
10. The sixteenth assignment is that the court refused to direct a verdict for defendant, and is based upon the denial of a motion made at the close of plaintiff’s proofs. Upon the denial of the motion, defendant proceeded to introduce proofs. The exception to the court’s ruling was thereby waived. Denman v. Johnston, 85 Mich. 387; Kelso v. Woodruff, 88 Id. 299.
The judgment is affirmed.