Bearce v. Fahrnow

• Decision Date: 19 May 1896
• Citation: 109 Mich. 315,67 N.W. 318
• Court: Michigan Supreme Court
• Parties: BEARCE v. FAHRNOW.

67 N.W. 318

109 Mich. 315

BEARCE v. FAHRNOW.

Supreme Court of Michigan

May 19, 1896

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by Edgar C. Bearce against August F. Fahrnow for money received. From a judgment in favor of defendant, plaintiff brings error. Reversed.

Sweet Perkins & Judkins, for appellant.

C. O Smedley (B. M. Corwin, of counsel), for appellee.

MOORE, J.

Plaintiff claims that in July, 1894, he let Alvin Cox have $100 to use in purchasing for him lambs, sheep, and cattle for use in his market; that a little later, on a Sunday, Cox bought of the defendant, Fahrnow, five head of cattle for $70, and paid him $48 of plaintiff's money, and was to pay him the balance,-$22,-in a day or two; that Cox told defendant that the money was not his. Plaintiff claims that after defendant got the $48, he refused to give it up; that on the next day he caused a tender of $22 and a demand for the cattle to be made, which demand was refused, and also that defendant refused to return the $48, and this suit was brought.

Defendant's claim is that Cox was owing him an old debt of $55; that the $48 was paid to apply on the old debt, and not on the cattle and that he (defendant) had no notice that the money belonged to any one but Cox until on Monday. He also claimed that the cattle were sold for $70, to be paid the next day; that before the cattle were delivered, his son objected to letting them go, until they were paid for, and for that reason they were not delivered. The jury returned a verdict for defendant.

The only questions necessary to discuss grow out of that portion of the charge of the court reading as follows: "Now you see, first, you must find that the forty-eight dollars was in fact the property of Bearce, in order to entitle him to recover at all. He is the plaintiff in this case, and, unless the property was his, of course he is not entitled to recover in any event. Then, if you find that the property, under the evidence here,-the forty-eight dollars,-the title was actually, as between Cox and Bearce, the property of Bearce then, in order to entitle him to recover, he must further satisfy you, by a fair preponderance of the evidence, that before the money was paid over to the defendant, the defendant had notice from Cox, or some one else, that the money did not belong to Cox, and that it was paid to him by Cox on that new deal,-that is, for the cattle that he...