Wawrzyniak v. Tobicej

166 Mich. 188 | Mich. | 1911

Moore, J.

Plaintiff claims that he, Joseph Wawrzyniak, purchased the stock in trade of a bakery in the city of Detroit from August Natzmann, and later secured a lease from the owners of the premises, Frank and Valentine Natzmann, parents of August Natzmann; that on the 16th day of March, A. D. 1907, plaintiff sold the bakery to the defendants for $489.48, receiving $280 in cash, the balance to be paid within a short time; that he made several demands on defendants for the payment of the balance due, and on their neglect to remit he brought suit in the justice’s court for the city of Detroit. The defendants appealed to the Wayne circuit court, where the trial resulted in a verdict for the defendants of no cause of action.

It is the theory of the defendants that the plaintiff and his father were copartners; that, at the time plaintiff sold the bakery to the defendants, plaintiff had done considerable damage to the bakery and the building, and that the plaintiff and his father were jointly liable as copartners to Frank and Valentine Natzmann for this damage; that the Natzmanns had instituted a suit against plaintiff and his father in the justice’s court for the city of Detroit to recover damages from the plaintiff and his father; that, at the time Constable Fox served the summons on plaintiff’s father in this action, said Constable Fox, together with Frank and Valentine Natzmann, compromised and settled this suit for damages for $200; and that Martin Wawrzyniak gave a written order to Frank and Valentine Natzmann on the two defendents for the payment of $200, which was paid. The case was submitted to the jury, which returned a verdict for defendants. A motion was made for a new trial, and the motion was overruled. The case is brought here by writ of error. The judge was not requested to file his reasons for overruling the motion for a new trial, and he did not file any reasons. The attorneys say no exceptions were taken during the progress of the trial, and that the case is not in a condition to be reviewed. They also say it was properly submitted to the jury upon the merits. We agree with them as to the last proposition, and find it unnecessary to pass upon the other.

Judgment is affirmed.

Bird and Hooker, JJ., concurred with Moore, J. Ostrander, C. J., and McAlvay, J., concurred in the result.