Comstock v. Comstock

• Court: Michigan Supreme Court
• Writing for the Court: Christiancy J.:
• Citation: Comstock v. Comstock, 15 Mich. 237 (Mich. 1867)
• Decision Date: 14 January 1867
• Parties: Wm. Comstock v. John W. Howd

15 Mich. 237

Wm. Comstock v. John W. Howd

Supreme Court of Michigan

January 14, 1867

Heard January 10, 1867 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case made from Gratiot circuit.

The case was commenced in a justice's court. The declaration was as follows:

"William W. Comstock, plaintiff, complains of John W. Howd, defendant who has been summoned to answer him in a plea of assumpsit, and says that about the middle of June last, the said John W. Howd, William W. Comstock, and divers other persons, desiring to celebrate the fourth day of July, A. D. 1865, and also on that day to serve a free dinner to the soldiers and their families, of Gratiot county, and also desiring to raise a sum of money for the said purpose, did designate the said William W. Comstock as a proper person to raise such a sum of money, by subscription, as would be necessary to defray the expense of said celebration, and make all necessary disbursements; all of which was agreed to by said persons, and accepted by the said William W. Comstock.

"And the said William W. Comstock further says that the said John W. Howd, for the carrying on of said purpose, became indebted to the said William W. Comstock in the sum of ten dollars, and promised to pay the same when requested, which will more fully appear from the instrument in writing, filed herewith. Yet the said John W. Howd has utterly refused to perform his said promise, though often requested so to do, to the damage of the said plaintiff fifty dollars, and for this he brings suit."

The paper referred to in said declaration, and filed therewith, is as follows:

"We, the undersigned, citizens of Ithaca and vicinity, agree to pay the several sums set opposite our respective names, for the purpose of furnishing a free dinner on the 4th of July to the returned soldiers and their families; also, to the widows and orphans of deceased soldiers of Gratiot county."

This was signed by the plaintiff, defendant, and twenty-five others. The amount opposite defendant's name was ten dollars.

After judgment, the defendant appealed to the circuit court, where he pleaded the general issue, and gave notice that he would give in evidence and prove that he signed said subscription with the express understanding that the said public dinner referred to therein should be given and served in the village of Ithaca, and that the same was not so given; and that he gave notice, before any expense had been incurred, that he would not pay his subscription unless said dinner was given in the village of Ithaca.

The objections to the evidence on the trial, and the facts, are stated in the opinion.

Judgment was rendered for plaintiff.

Judgment affirmed, with costs to the plaintiff.

H. Walbridge, for plaintiff:

1. It is not necessary that a person should be named as payee in the said subscription paper. By the popular plan adopted by the citizens of Ithaca, of whom the defendant was one, it was understood and agreed that the plaintiff should raise, collect, and disburse the funds.

The defendant's liability arose at the time of signing the subscription paper, subject only to his withdrawal of the same, and giving notice prior to any liability incurred by plaintiff, in the furtherance of the contemplated object.

Defendant's promise was not in consideration that, if plaintiff, by himself or with others, would get up and serve a free dinner to "returned soldiers," etc., he would pay, etc., but was in consideration of the object of the subscription, and in the other subscriptions, and was founded on a sufficient consideration: 12 Mich. 73.

Defendant promised and agreed to pay the amount of his subscription for the purpose of furnishing so much in defraying the expenses of a free dinner, etc.

The plaintiff's right of action accrued and was as perfect against the defendant on the 24th day of June, 1865, and after the agreement with Burgess & Kinkerter (who provided the dinner), as at any subsequent time.

Suppose Burgess & Kinkerter had refused to accept and look to plaintiff for pay, and some other person had become personally liable, how could that affect the defendant's liability to the plaintiff, and the plaintiff's right of action?

The plaintiff, in his declaration, clearly alleges the undertaking and promise of the defendant, the object, purpose, and the consideration for the same; the relation of plaintiff to the object contemplated and agreed upon, and also the relation of the subscribers to him as the payee and disburser of the subscription fund; and that for the purpose of carrying on and accomplishing the object in view, the defendant "became and was indebted" to him, plaintiff, etc.

The declaration contains all the material facts, in point of law, necessary to sustain this action.

But defendant having, by his plea and notice, waived his right to demur, can not now question the sufficiency of plaintiff's declaration.

This court have always held the rules of pleading to be extremely liberal when applied to justices' courts: 8 Mich. 427.

It is true that no precise day was agreed upon when defendant should pay his subscription, yet the facts clearly show, and it must have been understood by all the subscribers, including defendant, that the payment of the subscriptions must precede the getting up and serving of the dinner; that the payment was a prerequisite.

The acceptance of the duties and trust by the plaintiff was, in law, entering upon their discharge.

2. The evidence offered by plaintiff, showing that a dinner was provided and partaken of, as contemplated, and that plaintiff had expended money in procuring said dinner, was admissible and proper.

R. Strickland, for defendant:

1. There is no payee named in the said subscription; therefore, no promise in law.

The purpose for which the money was proposed to be given, or paid, was the furnishing of a free dinner for the returned soldiers, etc., of Gratiot county. The plaintiff has not in his declaration alleged that such a dinner was provided or partaken of by the parties named, viz.: the returned...