Davis v. Dodge

• Decision Date: 13 October 1874
• Citation: 30 Mich. 267
• Court: Michigan Supreme Court
• Parties: Charles M. Davis and another v. Curtis T. Dodge and another

30 Mich. 267

Charles M. Davis and another v. Curtis T. Dodge and another

Supreme Court of Michigan

October 13, 1874

Heard July 16, 1874

Error to Lapeer Circuit.

Judgment affirmed, with costs.

Gaskill & Geer, for plaintiffs in error.

William W. Stickney, for defendants in error.

OPINION

Graves, Ch. J.:

From 1855 to 1873 the defendants in error composed a firm, under the style of Dodge & Van Dyke. Their business was that of dry goods merchants, which they carried on at the city of Lapeer.

From 1864 until the 16th of September, 1872, the plaintiffs in error composed a firm, under the style of Davis & Peter. They dealt in hardware, and their place of business was also at Lapeer. At the last named date Peter sold out to one Slayton, and left the firm. Prior to his retiring, and for some years, the two firms had dealt together on credit; each firm keeping an open account with the other, and which, from time to time, was settled, by setting the account of one firm against that of the other and carrying whatever balance was found in favor of one or the other, as the case might be, to a new account.

During the same time, the individual partners respectively made accounts with the neighboring firm. Those made by or on the part of the individual members of the firm of Dodge & Van Dyke, at the establishment of Davis & Peter, were regularly charged by the latter in the firm account kept against Dodge & Van Dyke, but with references to indicate the party purchasing. The accounts made on the part of the individual members of the firm of Davis & Peter, at the establishment of Dodge & Van Dyke, were, however, kept distinct in the books of the latter firm.

It would seem to have been the usual course, if not the universal one, when adjustments were made, from time to time, between the firms, to carry into the account against the firm the private account run up by either member of that firm, and to treat the whole, for the purpose of settlement between the firms, as firm matters, and to transfer any balance to a new account.

Late in 1872, and after Peter had sold out to Slayton, the firm account of Davis & Peter against the firm of Dodge & Van Dyke was four hundred and sixteen dollars and twenty-six cents, and the firm account of Dodge & Van Dyke against the firm of Davis & Peter, exclusive of individual matters, was one hundred and sixty-four dollars and eighteen cents. The balance, therefore, on account, if no items made on the part of individual members were included, was in favor of Davis & Peter, and amounted to two hundred and fifty-two dollars and eight cents. But there was an account standing on the books of Dodge & Van Dyke of about two hundred dollars, which had been made on the individual behalf of Peter, and this he paid. There was also an account standing on their books made in the individual behalf of Davis. This amounted to four hundred and eighteen dollars and twenty-seven cents; and it slightly exceeded the entire firm account of Davis & Peter against Dodge & Van Dyke, without aid from the strict firm account of Dodge & Van Dyke against Davis & Peter, of one hundred and sixty-four dollars and eighteen cents.

Davis and Van Dyke met and assumed to adjust and settle the accounts on each side. They allowed the account of Dodge & Van Dyke against Davis, of four hundred and eighteen dollars and twenty-seven cents, and applied it as though it were a firm matter. The result was, that, instead of the production of a considerable balance in favor of Davis & Peter, as otherwise would have been the case, a pretty large balance was established against that firm.

For the balance thus obtained against Davis & Peter, the defendants in error instituted this suit. They were allowed to recover, and Peter alleges error.

It is unnecessary to examine the objections separately. The essential points may be disposed of otherwise. The case may be best considered by looking at it as it was developed in the court below, and seeing whether in view of the alleged errors any principle of law was violated. In pursuing this course no questions not deemed to be raised by the record will be noticed. The theory on which the plaintiffs below proceeded was that the two firms dealt with each other, and that each firm dealt with the members of the other, under an understanding and agreement of the firms and all the members, that the particular account run up by any member for his private benefit, with the neighboring firm, should be considered and treated as matter of firm account against his firm; that dealings and settlements on this basis had been made, and that the account in question against Davis was made by him and allowed by Dodge & Van Dyke to be run up, and was at length adjusted and settled on the strength of, and under and in accordance with, such antecedent agreement and practice.

There was evidence to favor this theory, and the charge recognized the fact and in effect allowed the jury, in case they should find according thereto, to give a verdict in favor of the plaintiffs be...