Cook v. Stevenson

• Decision Date: 07 October 1874
• Citation: 30 Mich. 242
• Court: Michigan Supreme Court
• Parties: Caroline A. Cook v. William P. Stevenson. [1]

30 Mich. 242

Caroline A. Cook v. William P. Stevenson. ^[1]

Supreme Court of Michigan

October 7, 1874

Submitted on Briefs July 23, 1874.

Case made from Kent Circuit.

Judgment affirmed, with costs.

Joslin & Kennedy, for plaintiff.

G Chase Godwin and Norris, Blair & Kingsley, for defendant.

OPINION

Graves, Ch. J.:

This is a case made after judgment. The suit was commenced by attachment. The declaration embraced, with the common counts, some which set up a special agreement. In these last were alleged the terms of a sale in August, 1869, by decedent to defendant, of a stock of groceries and merchandise, and other things, with the business and good will of decedent, for four thousand eight hundred dollars. As stated in the record, the terms and particulars of the arrangement were special and peculiar; but we do not conceive it needful to reproduce all the details here. So far as requisite, they may be alluded to hereafter. The plaintiff was described in the declaration as administratrix, and she counted against the defendant in that character. The defendant pleaded the general issue, and gave notice that he would prove that a contract was made with decedent, which was substantially set forth in the first count of the declaration, and that he would prove that he had performed it, and was always ready in all things to perform it according to its terms, and that no breach had been made on his part.

The court referred the case to a referee, who found in favor of the plaintiff for four thousand two hundred and seventy dollars and sixty-six cents, with interest thereon from August 25, 1873, being one hundred and sixty-four dollars and forty-seven cents.

Exceptions were taken to rulings on the trial before the referee, and subsequently settled. Exceptions were also filed to the report made by the referee. But all of these exceptions were overruled in the court below, and judgment was there given pursuant to the finding. These various exceptions are set forth in the case, and we may first notice those taken on the trial before the referee. The defendant appearing as a witness in his own behalf, his counsel proposed to show by him that the contract between himself and decedent, which was verbal, differed from the contract as set up in the declaration, and differed from a written statement of it which defendant had given to the plaintiff.

This was objected to on the ground, first, that the defendant could not be a witness on his own behalf, to prove a fact which must have been equally within the knowledge of decedent; and, second, on the ground that no notice had been given that proof would be offered of an agreement differing from that averred in the declaration.

The offer was rejected. We find no error in this ruling. The circumstances given by the record leave the question liable to the first ground of the objection. It does not appear, and there is nothing to raise an inference, that the fact sought to be shown could have been known to any one besides decedent and defendant.

The letters of administration were admitted against an objection that no such facts and circumstances were shown to the probate court as authorized the appointment of the plaintiff as special administratrix. This objection had no force. The regularity of the appointment was not open to inquiry on the issue being tried.

The admission of the order of the probate court, permitting the plaintiff to prosecute this suit, was likewise objected to. There was no merit in this point, and it is unworthy of special comment. It is but just to the defendant's counsel to add, that these questions were rather suggested than urged.

The learned referee reported that he was unable to find what occurred at a particular interview which took place after the death of Mr. Cook, between the defendant and Joseph Cook and Mr. Joslin, who were then acting for the widow. It does not appear that a finding on this subject was essential. Neither does it appear that there was evidence on which a finding of the sort mentioned was practicable. It is quite plain that the referee could not find affirmatively what occurred, unless the evidence, when rightly construed, showed or tended to show it. The evidence is not before us.

The referee found substantially that on the 25th of August, 1873 the defendant entered into an entire contract with decedent, which involved a present completed transfer and conveyance from decedent to defendant, of the decedent's mercantile establishment, certain personal chattels, a policy of insurance, and a lease; that defendant, in consideration of the transfer and arrangement, agreed to pay four thousand eight hundred dollars; that the transaction, so far as the bargain was concerned, was verbal, except that the policy and lease were assigned in writing; that the defendant was to pay down five hundred dollars, and one thousand dollars in ninety days, and one thousand dollars more in six months, with interest on each installment, and to secure these deferred payments by chattel mortgage on the property purchased; that the defendant was also to pay the residue, being two thousand three hundred dollars, in nine months, and to...