Whitaker v. Kilroy

• Decision Date: 15 June 1888
• Citation: 70 Mich. 635,38 N.W. 606
• Court: Michigan Supreme Court
• Parties: WHITAKER v. KILROY.

38 N.W. 606

70 Mich. 635

WHITAKER v. KILROY.

Supreme Court of Michigan

June 15, 1888

Error to circuit court, Wayne county; C.J. REILLY, Judge.

Action by Herschel Whitaker, as receiver of the Granger Engine-Works of Detroit, against Lawrence F. Kilroy. Judgment for defendant, and plaintiff appeals.

CAMPBELL J.

Plaintiff who is receiver of the Granger Engine-Works of Detroit, (a corporation in process of voluntary dissolution and liquidation,) sued defendant for the value of a steam-engine furnished by the corporation. It appeared on the trial, and was not contradicted, that the work was done under a written contract made by Mr. Brandon, the superintendent and bookkeeper; that the agreed price was $500, and that all of this price had been paid in full, in compliance with the terms of the contract. Nevertheless plaintiff undertook to sue Kilroy for what he claimed to have been the actual outlay of the corporation, with a percentage added for customary profits, all of which he insisted amounted to more than a thousand dollars. Judgment was rendered below for defendant. Upon the argument the counsel for plaintiff complained that the bill of exceptions had been made too prolix by the introduction of a large amount of testimony. It certainly should have been very much shortened. But we do not think the form in which plaintiff's counsel prepared it was such as to fully represent the true state of the evidence, although it may have been so according to his theory of its effect. We are not satisfied that, in the very great difference of views between the parties, the court below was not compelled, as we think it was justified, in allowing the testimony itself to appear. It is the duty of the party preparing exceptions to make them both concise and correct in their allegations, and, where there is room for difference concerning the tendency of testimony, it may sometimes be necessary to give the testimony itself on the disputed point. We are not informed from this record that the responsibility for the prolixity of this record rests on defendant in any considerable way, if at all.

Although this case was argued by plaintiff's counsel at some length, it does not seem to us that we should be justified in going into its details very much. The only causes of error relied on all go in one way or another to the question of the authority of the corporation agents. And it seems to us a very simple matter. Mr. Brandon's duties and powers were shown by plaintiff's own witnesses, and it was necessary to show them to bring defendant into contract relations at all. Mr. Brandon is shown by the testimony for plaintiff to have been the superintendent to do the general work and to keep the books. He is...