Cilley v. Van Patten

• Decision Date: 04 November 1885
• Citation: 25 N.W. 326,58 Mich. 404
• Court: Michigan Supreme Court
• Parties: CILLEY and others v. VAN PATTEN.

25 N.W. 326

58 Mich. 404

CILLEY and others v. VAN PATTEN.

Supreme Court of Michigan

November 4, 1885

Error to Ottawa.

George A. Farr, for plaintiffs.

C.C. Howell, for defendant.

SHERWOOD, J.

This suit was commenced in justice's court. The declaration contained a special count, wherein the plaintiffs alleged a failure of the defendant to perform a certain contract, by the terms of which the defendant, who was owner of a vessel running between various ports on Lake Michigan, agreed to carry for plaintiffs a cargo of wood when requested from Port Sheldon to the city of Racine, in the state of Wisconsin, in the month of August, 1880, and in consequence of the failure so to do, after request made, the plaintiff's property became wholly lost and destroyed. The common counts in assumpsit were added. The defendant pleaded the general issue, and gave notice of set-off in the sum of $300. No bill of items on either side was filed or demanded. The plaintiffs obtained judgment before the justice for $300. The defendant appealed to the circuit court, when the cause was again tried, with the same result as before the justice; and the case comes into this court on error.

On the trial the plaintiffs seem to have abandoned the special count, and sought to make their case under the common counts. The plaintiff Hatch was permitted to testify that he, as an individual, worked for defendant, in the summer of 1878, 67 days, and that it was worth $2 per day. Plaintiff Cilley also gave evidence showing that he individually performed services for the defendant amounting to $179. Plaintiffs both testified, under objection and exception, that each had assigned to the other an interest in and to their several accounts for the sole purpose of this joint action, and for no other consideration, which said assignments were received in evidence. There are no averments in the declaration, or notice in any manner to the defendant that an assigned account or claim of any description would come in question in this suit.

In the case of Blackwood v. Brown, 32 Mich. 107, Mr Justice MARSTON uses this language, citing Draper v Fletcher, 26 Mich. 154, in approval: "Previous to the passage of our statute authorizing the assignee of certain choses in action not negotiable to sue and recover the same in his own name, the assignee would have had to sue in the name of the nominal for the use of the real owner. While at the present,...