Begole v. McKenzie
| Decision Date | 09 April 1873 |
| Citation | 26 Mich. 470 |
| Court | Michigan Supreme Court |
| Parties | Joseph Begole and another v. Thomas McKenzie |
Heard January 9, 1873
Error to Ionia circuit.
Judgment reversed, with costs, and a new trial ordered.
Lemuel Clute, for plaintiffs in error.
W. W Mitchell, for defendant in error.
This is a writ of error by the defendants below, to the circuit court for the county of Ionia. The return to the writ, which includes the pleadings and a bill of exceptions, presents a case somewhat confused, and insusceptible of very precise treatment.
The declaration was confined to the common indebitatus counts in assumpsit, and the only part of it applicable was the general count for goods sold and delivered. The real claim was for the value of a quantity of saw logs.
The defense, aside from the general issue, was: first, that whatever logs, if any, were received, were furnished upon a special agreement between the parties, which was unperformed by McKenzie, whereby the plaintiffs in error suffered damage which they would seek to recoup; and, second, that the plaintiffs in error, with the assent and approbation of McKenzie, paid for whatever logs were received, to third parties, who claimed to own them.
Upon the trial, McKenzie gave in evidence the special contract set forth in the notice of defense, and finally insisted on a recovery upon it. Now, where the terms of a special agreement for the sale and delivery of goods have been fully carried out by the seller, where the articles have been discriminated and singled out from others, where all things needful to ascertain the price have been done, in short, where the property in the goods has passed, and nothing remains but a duty on the part of the buyer to make payment of the price in money, the amount may be recovered at the election of the seller, either under a general count for goods sold and delivered, or under a special count based on the agreement: 1 Chitty's Plead., 378 to 382, and authorities cited. It is also true, that when the seller has not so performed as to give him the right to such election, but yet, the buyer has actually received and appropriated the goods, or some of them, the seller may still sue on the common count. The grounds of the action, however, will be quite different in these cases, and this difference will affect the issue and the course of proof. In the first case the basis of the action, if the general count is resorted to, is an undertaking which the law imputes to the defendant as a consequence of the full execution of the special agreement by the plaintiff: Streeter v. Horlock, 1 Bing. 34; Studdy v. Sanders, 5 Barn. and Cress., 628; Bull. N. P., 139. In the second case, the plaintiff's right springs, not from his performance of the special agreement, since he has not performed it, but from the actual benefit derived by the defendant, through his appropriation of the plaintiff's property.
In the first case, the plaintiff's right is co-extensive with the past consideration involved in his performance of the special agreement; but in the second it extends no further than the consideration afforded by the benefit actually gained by the defendant. To establish a prima facie right, according to the first theory, the plaintiff proves the agreement and its full performance on his part, whereby it appears that there has been an express conveyance of the specific goods, and that nothing remains but a duty on the part of the defendant to pay the price in money: Stone v. Rogers, 2 M. & W., 443; Evans v. Harris, 19 Barb. 416. But according to the second theory, he ignores any express conveyance of specific goods, and relies upon evidence of the facts and circumstances showing an actual appropriation of his goods by the defendant. The principle on which a recovery is allowed in case of a special agreement not carried out by the plaintiff, was explained in Allen v. McKibbin, 5 Mich. 449, and Hosmer v. Wilson, 7 Mich. 294, and to the doctrine there stated we adhere.
In the case before us, as we have seen, McKenzie did not, by his pleading,...
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Mitchell v. Reolds Farms Co.
...remaining to be done but to pay to plaintiff his share of the proceeds of such sale, recovery may be had on the common counts. Begole v. McKenzie, 26 Mich. 470;Flint & P. M. R. Co. v. Wayne Circuit Judge, 108 Mich. 80, 65 N. W. 583. 2. It is contended the parties engaged in a joint enterpri......
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Fraser v. Collier Const. Co.
...if there was an express contract, none could be implied. Galloway v. Holmes, 1 Doug., Mich., 330. However, as early as 1873, in Begole v. McKenzie, 26 Mich. 470, where the declaration was confined to the common indebitatus counts in assumpsit, the defendant in error gave in evidence a speci......
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Kearns v. Michigan Iron & Coke Co.
...plaintiff's theory of the case, nothing remained to be done except for defendant to pay for the goods which it had received. Begole v. McKenzie, 26 Mich. 470; Flint & P. M. R. Co. v. Wayne Circuit Judge, 108 Mich. 80, 65 N.W. 583. 'Claims such as are here involved are assignable, and under ......
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