33 Mich. 68 | Mich. | 1875
Wixson sued Haywood in assumpsit and claimed to recover either upon a special count or the general count for money bad and received. The case was tried without a jury, and on special findings tlie court gave judgment for the defend
The second paper was signed by Haywood, and was in these terms: “ Pithole Creek, Granite State Petroleum Company ; capital seventy-five thousand dollars; shares one hundred dollars each. Manchester, N. H., November 27, 1865. Value received of Philip L. Wixson, of Lexington, Mich., is hereby entitled to certificate of one share of stock in the Pithole Creek, Granite State Petroleum Company, in accordance with the terms of the subscription to which said Philip L. Wixson’s name is attached.”
Sinclair resided in New Hampshire and the defendant in this state. No company seems to have been formed, and the enterprise appears to have dropped after these preliminary movements. The judge found expressly that it did not appear who composed the firm of Sinclair & Co., but he did not find that the defendant was a member. In proceeding
When we come to the paper Haywood signed we cannot find in it any agreement or promise that the company in question should be formed. Viewed in connection with the other, it imports that both parties expected that a company would be created, and were contemplating the right Wixson would then have in consequence of his present subscription and payment, and the most that can be said is, that Haywood stipulated that on the establishment of the company by Sinclair & Co., Wixson would stand entitled to the stock he had subscribed for; and hence until it appears that the company has come into existence, no claim founded upon the stipulation can be made against Haywood. I think, therefore, the plaintiff was not entitled to recover on the special count.
Was he entitled under the count for money had and received? We think not. The money was paid by Wixson to satisfy his subscription upon the paper which Sinclair & Co. tendered to him as a subscription list, and the defendant is not shown to have had any interest in that money. It is true it was in fact paid to defendant, but not to his use. As before stated, it was paid upon the subscription circulated by Sinclair & Co., and of which company the defendant was not shown to be a member, and it was so paid to the eventual use of the joint stock company Sinclair & Co. were to bring into existence, and it was manifestly meant for the hands of Sinclair & Co. in the first
The judgment should be affirmed, with costs.