Burrell v. Gates
| Decision Date | 06 April 1897 |
| Citation | 112 Mich. 307,70 N.W. 574 |
| Court | Michigan Supreme Court |
| Parties | BURRELL v. GATES. |
Error to circuit court, Ogemaw county; Nelson Sharpe, Judge.
Action by Archibald P. McKinnon and Thomas W. Burrell against Samuel G. M. Gates to recover commissions for the sale of logs. Pending the action, McKinnon died, and the case was continued by plaintiff Burrell, as survivor. There was a judgment in favor of plaintiff, and defendant brings error. Affirmed.
C. L Collins, for appellant.
Victor D. Sprague (McDonell & Hall, of counsel), for appellee.
This case was once before in this court, and reversed. 102 Mich 618, 61 N.W. 74. Upon a new trial the plaintiffs again had verdict and judgment. It is unnecessary to state the facts and issues any further than they will be found in the other opinion.
1. The deposition of Rinaldo McConnell, one of the firm of McConnell & Tough, who sold the logs to the defendant, was taken by commission. He testified that "Mr. Gates made the purchase by virtue of the option of McKinnon & Burrell." No objection was made to the interrogatory, nor to the answer thereto, upon the first trial. It does not appear, however that this waived his right to object. Angell v Rosenbury, 12 Mich. 259. The objection made is that it calls for a conclusion, instead of facts. The answer amounted to this: that the vendors and vendees were acting, in making this sale, under the option given to the plaintiffs, and we see no objection to testimony that the purchase was effected under that option. Defendant testified that he did not make the purchase under the option, and that he had no agreement whatever with the plaintiffs. While it would, perhaps, have been proper for the court to confine the parties to what was said and done at the time of the sale, still we do not think it error to permit the parties to testify under what authority or agreement they were acting.
2. Defendant, Gates, was asked by his counsel: "On this 10th of March, on whose judgment and upon what information did you rely, so far as your dealings in respect to these logs were concerned?" This was excluded. The court permitted the defendant to show all the information he obtained from other parties in regard to these logs, but refused to permit the witness to state upon what information he relied. The witness did state, without objection, that he did not act or operate under the option received from the plaintiffs. We think the ruling was correct. Even if defendant had relied upon the judgment and information received from others, this would not necessarily conflict with the agreement to pay plaintiffs a commission. Plaintiffs held an option for the purchase of the logs, and claim that they transferred it to defendant. If the purchase was effected under this option, it was immaterial whether defendant obtained other information in regard to the quantity or quality of the logs.
3. Mr Moulthroup, a witness for the defendant, and the manager of the Michigan Pipe Company, was asked: "State whether or not at that conversation anything was said about the Michigan Pipe Company and Mr. Gates investigating and purchasing these logs." The conversation referred to took place in January, 1891, nearly or quite two months before the contract between plaintiffs and defendant. Whether or not this might properly have been admitted, we need not determine. ...
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