Durgin v. Smith

• Decision Date: 29 May 1903
• Citation: 94 N.W. 1044,133 Mich. 331
• Court: Michigan Supreme Court
• Parties: DURGIN v. SMITH et al.

94 N.W. 1044

133 Mich. 331

DURGIN v. SMITH et al.

Supreme Court of Michigan

May 29, 1903

Error to Circuit Court, Wayne County; Flavius L. Brooke, Judge.

Action by William B. Durgin against Frank G. Smith, Sr., and another. Judgment for plaintiff. Defendants bring error. Reversed.

Moore &amp Goff, for appellants.

Bowen Douglas, Whiting & Murfin, for appellee.

HOOKER C.J.

A review of a former trial of this cause will be found in 115 Mich. 239, 73 N.W. 361, where an outline of the facts of the case can be found. Upon a second trial the jury rendered a verdict for the plaintiff, and the defendants have appealed.

The plaintiff's contention is that the defendants personally promised to pay plaintiff's claim against the insolvent corporation in consideration of plaintiff's promise to sell their goods to a new corporation, which the defendants contemplated forming. The defendants claim that their promise was not their personal promise to pay, but a promise that such proposed corporation would pay. The testimony of the parties supported their respective claims. Plaintiff, having furnished goods to the new corporation brought this action upon the contract, and the only important question was one of fact, viz., whose version of the oral agreement was true. The court submitted this question to the jury. He followed the charge proper by giving requests handed up by both parties; among them the following, viz., plaintiff's request No. 5: 'If you find that the defendants made a promise to pay to the plaintiff the existing indebtedness of F. G. Smith, Sons & Co., and the plaintiff on his part kept his promise to sell exclusively to the defendants, or such concern as they should thereafter organize, and even if you find that such promise was made with the intent on the part of the defendants to bind a corporation which they contemplated organizing thereafter, then, inasmuch as they could not bind such future corporation, having no authority to do so, they are individually liable on such promise so made, and your verdict should be for the plaintiff for the amount stated.' He afterwards gave defendants' ninth request, as follows: 'The plaintiff testifies that the defendants Smith agreed to pay the old account and pay interest at the rate of six per cent. semiannually, and to pay in thirty days for all goods purchased, he on his part ot sell them such goods as they wished, and to give them the exclusive sale of his goods. In order to make a valid contract, the minds of the parties must meet and agree upon the terms of the contract. If the jury find that the plaintiff and defendants did not agree as to the main features of the alleged agreement, the plaintiff cannot recover.' These requests are inconsistent with each other, and a jury would be likely to understand from the former that, although ...