Doty v. Nixon

• Decision Date: 12 May 1896
• Citation: 109 Mich. 266,67 N.W. 116
• Court: Michigan Supreme Court
• Parties: DOTY v. NIXON ET AL.

67 N.W. 116

109 Mich. 266

DOTY v. NIXON ET AL.

Supreme Court of Michigan

May 12, 1896

Error to circuit court, Eaton county; Clement Smith, Judge.

Action by Ellis Doty against Ladd J. Nixon and others. From a judgment for plaintiff, defendants bring error. Affirmed.

W. R Clarke and Huggett & Smith, for appellants.

Spaulding Norton & Weimer, for appellee.

HOOKER J.

The plaintiff was the owner of certain cattle, which he bargained, receiving from the hands of defendant Middleton a payment down, and promising to retain the cattle and feed them for a period agreed upon. Middleton was not able to pay for them, and an arrangement was made by which they were shipped to Buffalo, in charge of Middleton, but in the name of the plaintiff, who received a draft from a Buffalo dealer for the amount for which they were sold. This sum did not equal the amount that plaintiff would have been entitled to under the original contract, and he brought this action. The first count of his declaration alleges the contract with the three defendants to take the cattle, and their failure to accept the cattle. The second states their delivery to and acceptance by the defendants, and their failure to pay for the same. The common counts were also added. The court instructed the jury that the plaintiff could not recover unless the defendants were partners at the time of the purchase, and that the purchase was made upon their behalf as partners, and that Doty so understood it, and he directed them to find a verdict for the amount named in the verdict if they should conclude that it was a partnership transaction. Counsel contend: (1) That there was no evidence of a partnership transaction; (2) that the two special counts were inconsistent and antagonistic, and that plaintiff should have been required to elect upon which theory he would go to the jury; (3) that the first agreement was changed by an agreement subsequently made with Middleton, by which plaintiff released the defendants from the contract.

We think there was evidence tending to prove the existence of the co-partnership; that the original contract was made upon its behalf; and that plaintiff so understood it. The court did not err in submitting that question to the jury. The defendants showed that Middleton was unable to pay for the cattle, and that it was arranged that they should be shipped to Buffalo in plaintiff's name, so that the pay would go to him;...