Bullard v. Hascall

• Decision Date: 14 May 1872
• Citation: 25 Mich. 132
• Court: Michigan Supreme Court
• Parties: Zenas H. Bullard v. Lucian A. Hascall

25 Mich. 132

Zenas H. Bullard v. Lucian A. Hascall

Supreme Court of Michigan

May 14, 1872

Heard May 1, 1872

Error to Kalamazoo Circuit.

The opinion contains a sufficient statement of facts except as to the questions put to the witnesses, Wilson and Curtenius which were objected to as leading.

Benjamin Wilson testified that he was deputy United States collector and had been since June 15, 1869. He was then asked "Have you paid the firm of Hascall & Bullard anything for the government on account of any claim belonging to them against the government? If so, what?"

F. W Curtenius testified that he was president of the Kalamazoo Savings Bank. He was then asked: "Have you seen a draft drawn by the government and payable at the assistant treasurer's of New York, of seventy-five dollars, drawn in favor of Hascall & Bullard, within the last six weeks?"

These were the questions which were objected to as leading and referred to in the opinion.

Judgment of the circuit court affirmed, with costs, in all the courts.

Hawes & Edson, for plaintiff in error.

W. W. Peck and Arthur Brown, for defendant in error, were stopped by the court.

Christiancy, Ch. J. Cooley and Campbell, JJ., concurred. Graves, J., did not sit in this case.

OPINION

Christiancy, Ch. J.

This was an action brought by Hascall against Bullard in a justice's court, to recover the amount of a United States government draft of seventy-five dollars, drawn upon the assistant treasurer at New York, in favor of the firm of Hascall & Bullard (composed of plaintiff and defendant, who had been partners when the claim against the government accrued). The partnership was dissolved October 18, 1869, about a year before the draft was issued, and upon the dissolution Bullard had assigned and transferred to Hascall all the property, claims and assets of the firm, of which the claim against the government was a part; Hascall in the same instrument assuming all the debts and liabilities of the firm, and agreeing to indemnify Bullard therefrom.

The draft was sent by the government to a deputy collector at Kalamazoo, in October, 1870, to be handed over to the firm and was by him delivered to the defendant, Bullard, who gave a receipt for the same in the name of the firm. This draft was disposed of or negotiated soon after at the Kalamazoo Savings Bank by one Hawes, and the amount paid to him or passed to his credit in the bank; Bullard--as the evidence tended to show--himself being present at the bank with Hawes when the money was thus paid to, or passed to the credit of the latter. The draft was subsequently collected by the bank.

Hascall recovered judgment before the justice, and the case was removed to the circuit court for Kalamazoo county by certiorari, where the judgment of the justice was affirmed, which is brought to this court on writ of error.

By the return of the justice it appears that all the foregoing facts were shown by oral evidence, which was objected to by the defendant, on the ground that the draft itself should have been produced as the best evidence, and that no parol evidence of its contents was admissible, without first showing its loss, etc.

We see no force in this objection. The action was not brought upon the draft, but for so much money had and received by the defendant, which belonged to the plaintiff, under the transfer made to him on the dissolution of partnership. It clearly appeared by the other oral evidence that the firm before its dissolution, had this claim of seventy-five dollars against the government, and from the instrument executed by the parties upon the dissolution, that it was transferred to the plaintiff. It also sufficiently appeared,...