Bennett v. Smith
| Citation | 40 Mich. 211 |
| Court | Supreme Court of Michigan |
| Decision Date | 21 January 1879 |
| Parties | Russell H. Bennett v. Allen Smith, for use of Archibald Newton and William Bartholomew |
Submitted January 10, 1879
Error to the Superior Court of Detroit. Submitted January 10. Decided January 21.
Judgment reversed, with costs, and a new trial granted.
Atkinson & Atkinson for plaintiff in error. An undivided interest cannot be recovered in a suit at law, Lindley on Partnership 922; Bovill v. Hammond, 6 B. & C., 149; Goddard v. Hodges, 1 Cr. & M., 33; Milburn v. Codd, 7 B. & C., 421; Holmes v. Higgins 1 B. & C., 74; Lucas v. Beach, 1 M. & Gr 417; Ross v. Cornell, 45 Cal. 133.
D. C. Holbrook for defendant in error. The amount and price stated in a bill of particulars does not limit the quantity that may be shown. Smith v. Hicks, 5 Wend. 48.
Smith sued Bennett for the price of certain logs. Part of these had belonged to Smith and were bargained at eight dollars a thousand. The remainder were logs belonging to Smith and Bennett, for which Bennett was to pay the concern seven dollars and fifty cents a thousand. One principal question is whether Bennett can be sued for these logs of the joint ownership in this action. To determine this it is necessary to look at the facts.
In December, 1872. Smith agreed to buy on joint account certain lands to be owned in common, and to cut the pine timber on joint account,--the proceeds thereof to be divided equally after repaying the lumbering expenses and advances made by Bennett. Bennett was to have the right to purchase the logs on terms to be agreed on. In March, 1873, it was agreed he should take them under the contract terms at seven dollars and fifty cents. At the same time he bargained for Smith's other logs.
To ascertain, therefore, what Bennett owed Smith it was only necessary to deduct from the value of the logs Bennett's advances and divide the balance by two. Bennett was to make and did make the advances for buying the land and for expenses.
As there were only two persons interested in this bargain, we can see no practical difficulty in determining the price to be paid to Smith by Bennett. It involves nothing in the nature of partnership accounts beyond the disposal of an ordinary trial at law.
The court below was, we think, in error in allowing only $ 200 instead of $ 400 to be deducted from the gross value of the logs before dividing the balance. The contract expressly recognized Bennett's right to be repaid the whole advances for land as well as for other expenses, as a joint debt to him, and until those debts were paid there was nothing to...
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