Chamberlain v. Dow

• Court: Michigan Supreme Court
• Writing for the Court: Manning J.:
• Citation: Chamberlain v. Dow, 10 Mich. 319 (Mich. 1862)
• Decision Date: 06 June 1862
• Parties: Elisha Chamberlain and another v. Benjamin F. Dow and another

10 Mich. 319

Elisha Chamberlain and another v. Benjamin F. Dow and another

Supreme Court of Michigan

June 6, 1862

Submitted on Briefs, April 27, 1862 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Genesee Circuit.

The action was brought by Dow & Fowler against Chamberlain & Thomas to recover the price of a threshing machine. On the trial in the court below, the plaintiffs gave in evidence that they, residing and doing business in the State of New York, were partners in the manufacture and sale of threshing machines in the year 1858; that Daniel McKercher was then their agent, residing near the city of Flint, Michigan, for the sale of their threshing machines; that in June, 1858, said agent made a bargain verbally with said defendants, by which said McKercher, for plaintiffs, agreed to sell, and the said defendants to purchase, a threshing machine which McKercher agreed to send for to his said principals, the plaintiffs, and, on delivery thereof to defendants, they were to pay down fifty dollars, one hundred dollars in the following fall, and the balance, being $ 150, in one year therefrom, and in addition defendants to pay the cost of transporting said machine from New York to Michigan; and McKercher agreed to give defendants an order on the freight agent of the Detroit & Milwaukee Railway Co., for said machine, and leave the same for said defendants with Jerome Eddy. No note or memorandum in writing was made of this bargain, and no payment made by way of earnest or otherwise. McKercher, ten or twelve days afterwards, drew an order, directed to the freight agent of the Detroit & Milwaukee Railway Co., at Holly, to whom a threshing machine had been sent by said plaintiffs, ordering the delivery of said machine to said Thomas & Chamberlain; which order was left with said Eddy to be delivered to defendants. It did not appear whether Eddy ever delivered the order to anybody, but the machine was afterwards in the possession of defendant Thomas. In July, 1859, nothing having been paid by defendants for said machine, and the same then being in the possession of said Thomas, McKercher, who was still agent of plaintiffs, entered into an arrangement with said Thomas and his brother, Henry Thomas, by which they gave their joint note for $ 100, and delivered it to said McKercher, and agreed to secure by chattel mortgage on said machine the balance claimed by plaintiffs to be due from defendants for the machine; that said McKercher and the Thomases were to meet on a subsequent day, when the mortgage was to be given. The meeting soon thereafter took place, but McKercher insisting on a joint mortgage from said Thomases, and they insisting on separate mortgages, each on a half interest in said machine, they separated without any mortgage being given.

It further appeared that the $ 100 note was paid by the makers at or about the time of the maturity thereof. Also that McKercher had no directions from plaintiffs to make said arrangement with the Thomases, and plaintiffs had not been informed of it.

The defendants then gave evidence, showing that there was, in June, 1858, a verbal understanding between said defendants that they would purchase a threshing machine of said plaintiffs, through said agent, and operate the same as partners; that before the arrival of said machine, Chamberlain, by agreement with defendant Thomas, paid Thomas six cords of wood to be released from his agreement to purchase and operate said machine with him, which wood was received by Thomas as a satisfactory arrangement; of this arrangement neither the plaintiffs nor their agent had notice; Chamberlain did not receive the order for the machine from said Eddy, nor did he ever see it, nor was he present when said machine was obtained, nor did he have anything to do with getting it from the said freight agent; nor did he ever have possession of said machine, or anything to do with it.

The defendants below requested the judge to charge the jury, that the said bargain or understanding between the plaintiffs by their said agent, McKercher, and defendants, was void, because there was no note or memorandum thereof in writing, or payment of any sum, by way of earnest, to bind the bargain or otherwise; and that if the jury find that the agreement between defendants to jointly purchase and operate such machine had been rescinded before delivery of said machine, on the order therefor, to said defendant Thomas, said verbal agreement did not bind Chamberlain, and such bargain for the sale of said machine was, as to him, void by the statute of frauds. But the judge refused so to charge, and, on the contrary, charged the jury, that if the defendants purchased the machine in company, and became responsible therefor, that then the receipt of the machine by Thomas would take the case out of the statute of frauds, and the sale would thereby become binding on, and valid as to both of said defendants.

The defendant Chamberlain then requested the judge to charge the jury, that if they should find, from the testimony, that the said plaintiffs, by their agent, sold the machine, in 1859, to the Thomases, such sale should be regarded as an abandonment and rescission of the bargain and understanding made in 1858, with the defendants. But the judge refused so to charge, and, instead thereof, charged the jury, that if they should find that the plaintiffs sold the machine to the defendants according to the evidence on the part of the plaintiffs, a title to the machine vested in the defendants, and plaintiffs could not thereafter sell the said machine the second time, and divest the title of Chamberlain.

The jury rendered a verdict for plaintiffs, and defendants brought error.

Judgment reversed, with costs, and a new trial ordered.

Sutherland & Miller, for plaintiffs in error:

The verbal agreement for a sale to Thomas and Chamberlain was void, and there was no such subsequent delivery and acceptance of the property as was necessary to make a valid sale to both Thomas and Chamberlain. The case shows no subsequent act done by Thomas which purported to be the act of Chamberlain, or of Thomas and Chamberlain. In the absence of proof it can not be claimed, as matter of necessary legal inference, that he obtained the order for the machine in the name of both.

The original purchase being void, Thomas had no authority afterwards to so receive the machine as to bind Chamberlain 3 Mich. 322; 1 Comst. 261, 273.

The defendants were not partners when the void contract was made, nor did they hold themselves out as such. While their contract of partnership was executory, either might refuse to go on, without incurring any liability to third persons: 10 B. & C., 126; 9 Bing. 113; 6 Bing. 779; 10 M. & W., 131; Gray v. Gibson, 6 Mich. 300

It is insisted that...