Watson v. Andrews & Co., 201 Mich. 484

201 Mich. 484 | Mich. | 1918

Brooke, J.

(after stating the facts). There is no disputed question of fact in the case. The only assignment of error requiring consideration is that the court erred in directing a verdict for the plaintiff and in refusing to direct a verdict for the defendant upon its claim of set-off and recoupment. The action of the court in admitting evidence of the fact that defendant had sold the 10 shares of Saxon stock to the estate of Harry W. Watson is urged as reversible error.

We think it was competent for plaintiff to show, in answer to defendant’s claim of set-off and recoupment, that defendant in undertaking the purchase of said stock was dealing with him as trustee for the estate and the written evidence introduced as to the original purchase from defendant of the stock was of legitimate probative value for that purpose.

It seems to be conceded by counsel for the defendant that the oral contract between Mr. Pollitz, representing defendant, and plaintiff would have been unenforceable as falling within the statute. It is clear that there was no delivery or acceptance of the whole or any portion of the goods or choses in action contracted for and it is equally clear that there was nothing paid on account of the purchase price thereof. There remains then the question whether there is—

“some note or memorandum in writing of the contract or sale, signed by the party to be charged, or his agent in that behalf.” 3 Comp. Laws 1915, § 11835.

This brings us to a consideration of the correspondence. The letter of September 27, 1915, from defendant to plaintiff in which it is stated:

“We have bought from you the following stocks: Ten Saxon common, — Price: $275, Net amount: $2,750.”

—is unsigned by the defendant and is the only written evidence contained in the record tending to show that it ever agreed to buy from the plaintiff the stock in question. Did this writing bind the defendant to accept and pay for the said stock when it was tendered to it by plaintiff? It seems plain that it did not and upon this assumption plaintiff asserts that the contract is void for lack of mutuality, citing Wilkinson v. Heavenrich, 58 Mich. 574; Willebrandt v. Sisters of Mercy, 185 Mich. 366, and the cases therein cited. Answering this claim, defendant urges that it had agreed orally to the purchase of the stock and that the statute requires that the written note or memorandum of the contract shall be signed by the party to be charged only. We think it unnecessary to discuss the issue thus raised in this ease because in our opinion defendant cannot, recover on its claim of set-off and recoupment for the following reason: It seems quite clear upon the record that defendant knew or should have known in negotiating for the purchase of this stock that it belonged to the estate of Harry W. Watson and that the plaintiff in said negotiations was acting as trustee. The failure to deliver the stock therefore imposed no liability upon the plaintiff to defendant as an individual. It cannot set off a claim for which he is not liable as an individual in an action brought by him in his individual capacity. Many authorities are collected in the briefs of counsel touching upon the question whether sufficient can be gathered from the correspondence to satisfy the statute of frauds. This question as well as the earlier one raised may be dismissed with the observation that our conclusion on the point last decided is controlling.

The judgment is affirmed.

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