Costello v. Ten Eyck

• Decision Date: 05 June 1891
• Citation: 86 Mich. 348,49 N.W. 152
• Court: Michigan Supreme Court
• Parties: COSTELLO v. TEN EYCK.

49 N.W. 152

86 Mich. 348

COSTELLO v. TEN EYCK.

Supreme Court of Michigan

June 5, 1891

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

George H. Prentis, for appellant.

Brennan & Donnelly, for appellee.

LONG J.

This action was commenced in justice court against defendant and one William Ten Eyck, where plaintiff had judgment. The cause was removed to the circuit court for the county of Wayne and there tried before a jury, which rendered a verdict against the defendant Charles Ten Eyck, for $75. The court directed the jury that no verdict could be taken against the other defendant. Judgment was subsequently rendered against the defendant Charles Ten Eyck in favor of the plaintiff, the other defendant having judgment for costs against the plaintiff. Defendant Charles Ten Eyck brings the case to this court by writ of error. The declaration was filed in the justice court, and sets up that "John Costello plaintiff, complains of William Ten Eyck and Charles Ten Eyck, the defendants herein, in a plea of trespass on the case, for that, whereas, the plaintiff, on, to-wit, on or about the 1st day of October, 1888, at the township of Dearborn, in said county, delivered to the defendants a certain horse, being a dark sorrel, of the plaintiff. At the time of delivery of said horse to defendants said horse was well and sound to pasture at the rate of three dollars per month; and the defendants well knew at the time of the plaintiff's delivery of the said horse for pasturing that there was disease among the horses in the pasture in which the plaintiff's horse was left, by said defendants. That the said horse, thereafter about five weeks by reason of such disease among the horses and pasturage, and by the defendants not supplying water for said horse, the said horse died, to the damage of the plaintiff one hundred dollars, and therefore he brings suit." The plaintiff on the trial introduced evidence tending to show that defendant Charles Ten Eyck was in the business of taking in horses to pasture for hire, and that on September 30, 1888, plaintiff, by his brother, sent the mare in question to defendant to pasture, under an agreement to pay therefor three dollars per month. The mare remained there about three weeks, when plaintiff learned of the fact that the horses in defendant' pasture were afflicted with distemper. Testimony was also given tending to show that during the month of August and September of that year the defendant's pasture was infected with disease; that certain persons having horses therein took them out by reason of this disease; and that defendant had knowledge that these horses were taken out by reason of being diseased before the time plaintiff's horse was turned into pasture, and that he gave plaintiff no notice of that fact, but permitted his horse to remain there, with full knowledge of the diseased condition of the pasture and the horses therein. It also appears that this disease was highly infectious. Defendant introduced testimony tending to show that he had no knowledge that any distemper existed there in the pasture, or among the horses there at pasture. Several defenses were interposed on the trial of the cause in the court below, and several questions are presented to this court as reasons why the judgment and verdict of the court below should be reversed. It appears that the horse was put into the pasture, and the contract made for its keeping, on September 30, 1888, which was upon Sunday. It is contended by defendant that plaintiff could not recover in this action, because it was a Sunday contract, for the keeping of the horse; and that, inasmuch as the contract is void, no recovery could be had. Counsel cites in support of this proposition many cases from this court and the courts of other states holding Sunday contracts void. The statutes of this state (section 2015, How. St.) provide "that no person shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertainment, or take part in any sport, game, or play, on the first day of the week. The foregoing provisions shall not apply to works of necessity and charity, nor to the making of mutual promises of marriage, nor to the solemnization of marriages." The penalty for the violation of this statute is by fine. This statute has been passed upon many times by this court, and it has been held that such contracts could not be ratified upon a week-day thereafter. Adams v. Hamell, 2 Doug. (Mich.) 73; Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355, 7 N.W. 906; Brazee v. Bryant, 50 Mich. 141, 15 N.W. 49; Railway Co. v. Chappell, 56 Mich. 194, 22 N.W. 278. Under this statute and these decisions and the decisions of courts in other states passing upon similar statutes, cited by defendant's counsel in his brief, it is contended that the court should have directed the jury to return a verdict in favor of the defendant for the reasons: (1) That the action is assumpsit; (2) that, whether it is an assumpsit or is an action on the case, it cannot be sustained without the aid of the contract, and, that contract being void, there is nothing left upon which to base the action. The action, as before stated, was commenced in the justice court. The declaration was evidently drawn by the plaintiff without the aid of counsel, but it was evidently intended by the pleader to claim damages in the action for the wrong in permitting his horse to be turned into pasture, the defendant knowing of the existence of disease there. It is a plea in trespass on the case, and claims damages in the sum of $100, and we think the declaration is one in trespass on the case, and not in assumpsit.

Declarations in justices' courts are to be liberally construed; and though informal where they fairly apprise the defendant of the claim made against him, may be held...