50 Mich. 475 | Mich. | 1883
Defendant was sued for the price of a horse sold him by Emery Wood, a brother of plaintiff who claimed as assignee. The suit was brought before a justice while the defendant was an infant, and this appears of record. He was still an infant when the judgment rendered against him by the justice was appealed. Judgment was rendered against him also in the circuit court for Ingham county. It appeared that defendant had been garnished by a creditor-of Emery Wood, and had paid the money over. But in the present suit this was not, so far as appears, established to have been before some notice of the assignment. Defendant was also prevented by the ruling of the court from showing fraud in the assignment.
If the case could stand unreversed upon the other matters, we should wish to consider whether a garnishee who has disclosed and paid over money to creditors would not be entitled, when sued on the same debt, to show that the assignment was not valid as against the creditors who garnished him, and who had, if it was fraudulent, a right to complain themselves of the assignment. While we do not find ourselves called on to pass upon this allegation of error, we do not wish to have it understood that it is regarded as unfounded. We leave it for future consideration.
W e think the jury was clearly misled by the course taken below on the subject of infants’ contracts. While the court in the charge did undoubtedly charge that the plaintiff must show the horse to have been a necessity to the defendant, the force of this was destroyed by the other charges and refusals to charge.
The plaintiff — although the defendant appeared only as an infant and his infancy was admitted — made no attempt to do any more than prove the sale of the horse as if made to a person of full age. When he rested he had made out no cause of action. If he recovered at all it could only be because the defendant (who was very unnecessarily called on by whoever represented his interests to show by way of defense what the law presumed in his favor) made out a
This showed quite clearly that the horse was not necessary for defendant, and the court should not have refused to so charge. By refusing this charge, and by giving the jury to understand, as we think they could not fail to understand, that it was the necessity for the farming business, and not the necessity for the defendant’s part in it, that would make him liable, they were led to a verdict which has no testimony to sustain it.
We have had some doubt whether we could properly grant a new trial upon the reversal. The defendant was not brought into the case so as to be impleaded in the way the statute points out. The guardian does not, on the original record, appear to have been properly appointed, and he, and not the defendant, had charge of the original defense and appeal. We are strongly inclined to regard the whole proceedings as too defective to bear investigation. Defendant did not assign error on this point, but it is open on the record, where the issues indicate error, and may stand in the way of any future judgment for plaintiff.
As the assignments of error now stand, we shall reverse the judgment, with costs of both courts up to this time, and allow a new trial if the plaintiff sees fit to incur the risk.
