Campbell v. White

• Decision Date: 04 January 1871
• Citation: 22 Mich. 178
• Court: Michigan Supreme Court
• Parties: Colin Campbell et al. v. Mary White

22 Mich. 178

Colin Campbell et al. v. Mary White

Supreme Court of Michigan

January 4, 1871

Heard October 27, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of assumpsit, brought by Colin Campbell, Thomas Linn and Robert Hosie, in the circuit court for the county of Wayne, against Mary White. The plaintiffs declared upon the common counts; and the defendant pleaded the general issue, and gave notice of the statute of limitations.

The cause was tried by a jury on the ninth day of March, A. D. 1870, the plaintiffs' evidence tending to prove, that from the year 1860, until the time of the trial, the plaintiffs have been dry goods merchants in the city of Detroit; that in 1860, and from that time until about November 1st, 1867, defendant resided in the city of Detroit, and was the wife John Drew until about May, 1862; that she was at that time living with him and their children, and was then and has ever since continued to be the owner of real estate in the city of Detroit; that during the first part of the year 1860, defendant purchased goods of plaintiffs, which were charged to her husband, John Drew; that in the year 1860, prior to July 1st, said John Drew gave plaintiffs notice that he would not pay for any more goods purchased by defendant; that plaintiffs at that time informed defendant of the notice her husband had given, and told her that all the goods which she got thereafter should be charged to her; that she assented thereto, and promised verbally to pay for all goods she should thereafter purchase; that defendant was to have a credit on the goods she purchased until the end of each six months during which they were purchased; that from July, 1860, to November, 1861, defendant purchased goods at the store of plaintiffs, amounting to more than seven hundred dollars, of which about two hundred dollars were purchased from July 1st to November 1, 1861, which were charged to her by plaintiffs on their books, which were all articles of family use, for the use of members of her husband's family, as well as herself; that she repeatedly promised to pay for the same, but neglected to do so; that thereafter defendant purchased no more goods of plaintiffs on credit until September, 1865; that from this last date and before August, 1866, defendant purchased of plaintiffs about seventy-five dollars' worth of goods, which were charged to her on the books of plaintiffs, in the same account with those previously purchased; that defendant admitted her liability, and offered payment for these last goods; that there had been no settlement of the previous account, or agreement as to its amount; that there were items on the credit side of the account of defendant--one of August 15, 1860, for a rosette returned, one of March 4, 1861, for a pair of blankets returned, one of February 6, 1862, for cash returned, one in 1866, for a bonnet marked as returned, but that no bonnet was charged to defendant in the account, previous to the credit for a return; that on or about the first day of November, 1867, defendant removed her residence to Windsor, in Canada (now the province of Ontario), where she has resided ever since.

The defendant offered evidence tending to prove that during the years 1860 and 1861, defendant was residing in Detroit with her husband, John Drew, and children, and that the goods she purchased at that time of plaintiffs were articles of and for family use, and were used by the children of the said John Drew, and that she never promised to pay for said goods, and that no credit was ever agreed upon or promised to her on the sale of said goods; that after she removed from Detroit in 1867, to Canada, she resided for over a year in Windsor, and was frequently in Detroit, and in plaintiffs' store, and collected the rents from her real estate in Detroit, in person, and managed the same.

The plaintiffs' counsel requested the circuit judge to charge the jury:

First. That if the jury find, from the evidence, that the goods, charged in plaintiffs' account during the years 1860 and 1861, were furnished on defendant's credit, and with her knowledge and assent charged to her at that time, she became legally liable therefor.

Second. That if the jury find, from the evidence, that the items charged to defendant in 1860 and 1861 were never settled, or the amount agreed upon between the parties until the items charged in 1865 and 1866, the whole constitutes one open continuous account within the meaning of the statute of limitations.

Third. That the time in which defendant has been absent from and resided out of the state, must not be counted as a part of the period prescribed by the statute of limitations, even though she was frequently in the state and had property there during the period of her absence. Which requests the circuit judge refused, and the plaintiffs excepted.

At the request of the defendant the circuit judge charged the jury:

First. That for so much of the goods sued for as the jury find were sold to the defendant while she was living with her husband, John Drew, and were articles of family use, the plaintiffs cannot recover in this action.

Second. That the account sued by plaintiffs is not a mutual and open account within the meaning of the statute of limitations, and plaintiffs can only recover for such items as appear to have been sold within six years before defendant's removal out of the state, unless there was a credit given for six months.

Third. That if the jury find that defendant, while she resided at Windsor, was regularly in the habit of frequently coming to Detroit openly and without concealment, she did not reside out of and remain absent from the state within the meaning of the statute of limitations. To which the plaintiffs excepted. The jury found a verdict for the plaintiffs for seventy-two dollars and eighty cents, and judgment being entered thereon the cause comes into this court by writ of error.

Judgment reversed, with costs and a new trial ordered.

Walker & Kent, for plaintiffs in error:

I. A married woman, possessed of sole property, is liable for family supplies purchased by her expressly on her own credit, though at the time residing with her husband: Tillman v. Shackleton, 15 Mich. 447.

II. The account sued upon was a mutual and open account current within the meaning of § 5365 of the Comp. Laws. It was an open account current, because never closed or settled. The long time which intervened between the different parts of the account does not prevent the whole from being considered as one account. To make an account mutual, it is not necessary that it should be kept by both parties: Chambers v. Mack, 25 Penn. St., 296; Kimball v. Kimball, 16 Mich. 217. It is enough, though on one side the account consists of but a single item: Penniman v. Rotch, 3 Met. (Mass.), 216; Abbott v. Keith, 11 Vt. 525; 2 Vt. 146, 369. There are several credits to defendant in plaintiffs' account, some of which are for the return of specific articles sold, one of which, however, is for an article not charged in the previous account, and which is beyond question an item sold by defendant to plaintiffs, and is enough of itself to make the account mutual.

III. The removal of defendant to Windsor, Canada, on the first day of November, A. D. 1867, and her subsequent continued residence in Canada, prevented the statute of limitations from running after the date of her removal, notwithstanding she might have been in Detroit frequently thereafter on visits: Effinger v. Hudson, 33 Miss. 449. The proposition stated depends upon the construction of § 5369, Comp. Laws. In favor of the view for which we contend, are the following cases: Burroughs v. Bloomer, 5 Denio 532; Gaus v. Frank, 36 Barb. 320; Berrien v. Wright, 26 Barb. 208; Didier v. Davison, 2 Barb. Ch., 477; Chenot v. Lefevre, 3 Gilman (8 Ill.), 637.

D. B. & H. M. Duffield, for defendant in error:

I. The question is, whether a married woman, when living with her husband, is liable for the price of family articles ordered by her for her husband's household, even though they were with her knowledge and assent charged to her. If she is liable at all it can only be by virtue of the act of 1855: Comp. Laws, pp. 966 and 967. It may be contended by plaintiff in error, that this question has been disposed of by the case of Tillman v. Shackleton, 15 Mich. 447; but we insist not. That case decided only that the purchase of articles of furniture to be used in the wife's separate and individual business of keeping a boarding-house, was a contract in relation to the wife's separate estate, Christiancy J. holding distinctly that the business of keeping a boarding-house was separate estate. The case at bar presents the question whether a married woman's contract for the purchase of articles, which were never intended to become her separate property, but were for family use, shall be held binding upon her. We submit that a wife is not liable upon a contract made by her for the purchase of separate property: Howe v. Wildes, 34 Me. 566. Neither does the fact that a married woman has separate property and is pecuniarily responsible, make her liable on a contract in which credit is given to her, unless the subject matter of the particular contract has reference to her separate estate: Dissenting opinion of Morgan J. in Barton v. Beer, 35 Barb; Tate v. Dederer, 18 N. Y., 265; 22 N. Y., 450; Jones v. Crosthwaite, 17 Iowa 393; Rodemyer v. Rodman, 5 Iowa 426; Glover v. Alcott, 11 Mich. 470.

II. The account was in no sense a mutual and open account current within the meaning of Comp. Laws, p. 1407, § 5365. The bill of exceptions shows that all the account, except about...