Dickinson v. Dustin

• Decision Date: 18 October 1870
• Citation: 21 Mich. 561
• Court: Michigan Supreme Court
• Parties: Asa D. Dickinson and Lothrop S. Hodges v. Selah Dustin

21 Mich. 561

Asa D. Dickinson and Lothrop S. Hodges v. Selah Dustin

Supreme Court of Michigan

October 18, 1870

Heard October 12, 1870

Error to Wayne circuit.

This was an action of assumpsit brought by Selah Dustin, in the circuit court for the county of Wayne, against Asa D Dickinson and Lothrop S. Hodges. The plaintiff declared specially:

"For that, heretofore, to wit: on the fifteenth day of November in the year of our Lord eighteen hundred and sixty-five, the said Asa D. Dickinson and one Charles P. Crosby, were doing a general law and collection business in Detroit, under the name and style of Dickinson & Crosby, and they, the said Dickinson & Crosby, on the time aforesaid, to wit, at Detroit, aforesaid, were indebted to the plaintiff in the sum of ten thousand dollars, for money had and received by the said Dickinson & Crosby, to and for the use of the plaintiff, in the course and as a part of the general law and collection business in which they were engaged. That afterwards, to wit, on the said fifteenth day of November, A. D. 1865, the said Dickinson & Crosby dissolved their said business connections, the said Crosby leaving the said business, and thereupon the said Lothrop S. Hodges entered into the like business relations with the said Asa D Dickinson, for the transaction of the same general law and collection business, under the name and style of Dickinson & Hodges, and in consideration that the said new firm of Dickinson & Hodges were to continue and carry on the same general law and collection business of which they were the successors and purchasers from said Dickinson & Crosby, and have the benefit thereof, and were to a great extent to continue business already in the hands of said Dickinson & Crosby, of which said indebtedness formed a part, they, the said defendants, purchased and assumed the said indebtedness of the said Dickinson & Crosby to the plaintiff, and for the like consideration, and that the defendants should and would go on and complete the business of the plaintiff, then in the hands of the said Dickinson & Crosby, they, the said defendants, on the day and year last aforesaid, undertook and promised to and with the said plaintiff to pay the said indebtedness to the plaintiff when they should be thereto afterwards requested; and the defendants, though often requested so to do, have not paid the said sum of money, or any part thereof, but have wholly neglected and refused so to do." To which the common counts were added.

The defendants pleaded the general issue and gave notice of set-off. On the trial a verdict was rendered in favor of the plaintiff, and the judgment entered thereon comes into this court by writ of error. The questions which were raised upon the trial and which are here reviewed, fully appear in the opinion of the court.

Judgment reversed with costs, and a new trial granted.

C. I. Walker, for plaintiff in error.

Levi Bishop, for defendants in error.

Campbell, Ch. J. Cooley, and Graves, JJ. concurred. Christiancy, J. was not present on the argument of this case.

OPINION

Campbell Ch. J.:

Dickinson and Hodges were sued, among other things, to recover certain moneys collected by a former firm of Crosby & Dickinson, upon the ground that Hodges had taken Crosby's place in the firm, and assumed the liabilities by an arrangement to which Dustin was a party. Judgment was given against them.

It is claimed as error that the declaration sets forth no sufficient consideration for the promise to pay that indebtedness to Dustin. The objection was not taken by demurrer, but was taken for the first time at the trial. The declaration was very defective in this regard, but it appears from it that the money was collected as a part of the general collecting business of the old firm; that Hodges was to take Crosby's place and continue the same business which was in their hands and as a part of the transaction assumed the indebtedness, and in consideration that they were to go on and complete Dustin's business, agreed with Dustin to pay him the debt. In a very roundabout and inferential way, but nevertheless intelligibly, we think, it appears that the retention of Dustin's business was the consideration of the promise to pay him what had been assumed as between the new firm and the old. We cannot take it for granted this was a valueless arrangement--so far as appears from the face of the declaration, and in the absence of a demurrer, we think it comes directly within the the principle of Kean v. Mitchell, 13 Mich. 207, that a defective statement of consideration is good unless demurred to, if the consideration referred to can possibly be valid.

The court below...