Carmody v. Powers

• Decision Date: 10 February 1886
• Court: Michigan Supreme Court
• Parties: CARMODY v. POWERS and others.

26 N.W. 801

60 Mich. 26

CARMODY v. POWERS and others.

Supreme Court of Michigan

February 10, 1886

Error to Charlevoix.

Pailthorp & George, for plaintiff.

R.L. Corbett, Cruickshank & Grier, for defendants and appellants.

CAMPBELL, C.J.

Carmody sued defendants in the circuit court for the county of Charlevoix to recover for the value of a steam-engine and machinery for sawing and similar purposes, and he recovered judgment for the amount claimed. The suit was defended on two chief grounds: First, that the property was subject to claims beyond what he represented, and that he did not fulfill a part of the agreement to work for the company; and, second that the contract was not individual, but was made on behalf of a corporation known as the Northern Manufacturing Company. Several assignments of error are alleged, which are practically disposed of by the findings of the jury on questions which were submitted at defendants' request and in fact as well as presumably against them as proponents based on testimony open to the jury to consider.

Plaintiff's claim is that in July, 1883, he owned the property in question subject to a lien in favor of his vendors, Messrs Chandler & Taylor, of Indianapolis, for two notes, of $725 each, and interest, one of which he had arranged with a firm named Wilcox & Co. to pay, and of which full payment was delayed by non-payment of a check, and the other still due. He sold the engine and machinery, as he claimed, and as the jury found, to defendants, dealing with Harry Powers in their behalf, for $2,700, which was to be paid by their assumption and payment of the last-named note, and the delivery to him thereafter of $2,000 of paid-up stock in a company which defendants contemplated organizing, on a basis which would make the stock worth its face. There was a conflict of testimony whether or not he agreed to serve the proposed company at $50 a month, but as no time of service was specified this is not material, and if plaintiff was in default, it cannnot be claimed that such a default made after the delivery of the property could avoid the contract itself or furnish more than a counter-claim for damages. The charge asked, that it would avoid the contract cannot be supported on any ground. And the same defect exists concerning the charge asked, that if the machinery was subject to any larger lien than was represented plaintiff had no title which he could convey, and could not recover. He did not claim to transfer an absolute title, but merely one subject to a lien specified. He claims he fully explained how matters stood. But it cannot be insisted that no value...