Butters Salt & Lumber Co. v. Vogel

• Decision Date: 18 March 1902
• Citation: 130 Mich. 33,89 N.W. 560
• Parties: BUTTERS SALT & LUMBER CO. v. VOGEL.
• Court: Michigan Supreme Court

89 N.W. 560

130 Mich. 33

BUTTERS SALT & LUMBER CO. v. VOGEL.

Supreme Court of Michigan

March 18, 1902

Error to circuit court, Mason county; Cassius M. Beardsley, Judge.

Action by the Butters Salt & Lumber Company against Albert Vogel. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Fitch &amp Reek, for appellant.

Henry C. Hutton, for appellee.

MONTGOMERY J.

The plaintiff in 1898, and 1899 was conducting a store at Walkerville, Mich. William Weicksall was a contractor, under contract to cut, haul, and deliver certain logs to defendant. Soon after commencing operations, in September, 1898 Weicksall began to trade at plaintiff's store at Walkerville. From the 23d of November until the close of operations in the spring, the plaintiff furnished merchandise to Weicksall, which was not paid for, amounting to $138.64. This action is brought upon the theory that the credit for these goods was extended solely to the defendant, and upon that theory the plaintiff prevailed below, upon a special finding of facts and law, and the case is brought here for review; the chief contention being that the evidence did not support the finding of facts. The question is whether the testimony shows that the promise made by defendant was an original promise or a collateral one. Mr. Smith, who was a clerk in the employ of plaintiff testified as follows as to the original agreement: 'Mr Weicksall was an entire stranger to me, and he came there and ordered goods, and I told him I could not do it, and he said he was logging for Vogel; and then Mr. Vogel came up, and I asked him about this man [Weicksall], and he said Weicksall was working for him, and he should have to have goods, of course, to carry on his camp, and he would just as soon that he would get them of us as anybody else, and he would see that the account was paid; and every time Mr. Vogel came to Walkerville I would ask him about the account, and he said that the account was all right, and he would pay it. Every time I would see him, and I think I can prove that I did say that. I think that was about all the conversation there was. Q. You did, then, let Mr. Weicksall have goods after that? A. Yes, sir. Q. You did let Mr. Weicksall have goods out of your store? A. Yes, sir. Q. To whom did you sell the goods, Mr. Smith? A. I should not have sold them to Weicksall without the guaranty. Q. To whom did you sell these goods,--to Mr. Weicksall or to Mr. Vogel? A. Mr. Weicksall got the goods on his [Vogel's] order.' On cross-examination witness testified: 'Q. You stated, Mr. Smith, that you would not have sold these goods to Mr. Weicksall without the guaranty of Mr. Vogel? A. I did. Q. You did sell them to Mr. Weicksall upon that guaranty? A. Yes, sir. Q. To whom was the charge made, if any, on the books? A. It was in Mr. Weicksall's name.' Redirect examination: 'Q. Why did you make the charge on the books to Mr. Weicksall? A. Because it was Weicksall who got the goods under Vogel's order. Q. Was it done for convenience, in any way? A. Yes; it was. Weicksall's men done all the trading. Vogel never came and bought goods for this man,--Vogel himself. Q. That is, he never same and got...