Farwell v. Dewey

• Decision Date: 15 July 1864
• Court: Michigan Supreme Court
• Parties: Samuel Farwell and others v. Charles E. Dewey and another

12 Mich. 436

Samuel Farwell and others v. Charles E. Dewey and another

Supreme Court of Michigan

July 15, 1864

Heard October 17, 1863 [Syllabus Material] [Syllabus Material]

Error to Genesee Circuit.

Charles E. Dewey and Alvin Crossman, suing for the use and benefit of Terbell, Jennings and Millspaugh, brought suit against the plaintiffs in error in assumpsit. On the trial before a jury it appeared that, in 1859, said Dewey and Crossman were merchants at Flint; that the defendants were at that time a firm under the name of Paul, Farwell & Co., and were engaged in constructing the Flint & Pere Marquette Railway Company's road, between East Saginaw and Flint and that in the summer and fall of the year 1859, the defendants had several gangs of men at work, clearing and grading for their road, on the thirteen miles thereof next to the city of Flint, some of whom worked by the job, and some by the day. It appeared that goods to the amount of $ 1,743.70 were delivered at sundry times in the fall of 1859, from September 2d to December, to the men so in the employ of the defendants. Of this amount, $ 235.49 were furnished and at first charged to one Hughes, a subcontractor under defendants; but afterwards charged over to defendants, $ 48.04 were delivered on the written order of Paul, Farwell & Co., $ 27 on the written order of one of the members of said firm, and $ 1,140.69 on orders, written or oral, by the foremen of the several gangs of men in defendants' employ, or by a subcontractor. On the 21st of November, 1859, the defendants gave to sundry men certificates in the following form:

"Flint & Pere Marquette Railway Co. There is due Michael Ryan forty-six and 77-100th dollars, for labor performed on the first thirteen miles of your road, next to Flint.

"Nov. 21st, 1859. "Paul, Farwell & Co."

And these certificates (which were alike except as to name and amount), were presented at the office of the said railway company and were accepted by the company in writing (George M. Dewey then being the president and E. H. Hazelton the treasurer of said railway company, and said Crossman one of the directors and a stockholder). After the giving of such certificates and their acceptance as above, they were presented by the holders at the store of Dewey & Crossman, and goods delivered thereon to sundry men, and in sundry items, at different times, to the amount of $ 292.48, which amounts were severally indorsed on said accepted certificates by Dewey & Crossman, as payment to the extent of the goods so delivered, and all the goods so paid on such certificates were charged in the account by said Dewey & Crossman against the defendants, and made up a part of the amount of $ 1,743.70, above spoken of.

There was no evidence in the cause of any transfer of the claim of said Dewey & Crossman to said Terbell, Jennings and Millspaugh, nor that said three last named parties had any interest in the suit, nor in the said cause of action.

Evidence was given on the part of the defendants to show that the goods so furnished were advancements to them by Dewey & Hazelton, under an arrangement with them to that effect; and that statements of account furnished to them from time to time by the plaintiffs, were so furnished in order that they might credit the same to said Dewey & Hazelton, which was done accordingly.

And thereupon the counsel for defendant requested the court to charge the jury, that Terbell, Jennings and Millspaugh are in this case the real plaintiffs in interest, and Dewey and Crossman are only nominal plaintiffs, and that without proof of a legal transfer of the cause of action to the real plaintiffs in interest, from Dewey & Crossman, the plaintiffs are not entitled to recover. This request the court refused.

The counsel for the defendants further requested the court to charge the jury, that the trading done on the certificates of Paul, Farwell & Co., addressed to and accepted by the Flint & Pere Marquette Railway Company, can not be charged to defendants, without proof of a request by defendants that Dewey & Crossman should pay these certificates, or a part of them; and without such proofs the plaintiffs cannot recover for those items; which charge the court refused to give; but on this point the court charged the jury, that the plaintiffs could not recover unless the jury should find that the trading done on the certificates came within the original arrangement between the parties, or unless the defendants subsequently assented to the goods being charged to them; and in case the charging to defendants was within the original arrangement, or was subsequently assented to by them, that would make defendants liable.

The counsel for the defendants also requested the court to charge the jury, that the amount of the account charged against Hughes, and afterwards transferred to the account of the defendants, is not a legal charge against the defendants, without proof of a promise in writing by defendants to pay the same. But the court refused so to charge, but did charge that unless the jury find that the goods were delivered according to arrangement, or subsequently assented to by defendants, the defendants would not be bound by such transfer of accounts; but if there was such an arrangement on which the goods were delivered, and such subsequent assent, then defendants were liable.

The counsel for defendants further requested the court to charge the jury, that if the jury shall find from the testimony that the arrangement with plaintiffs, proposed or assented to by defendants, and pursuant to which the goods in question were paid out by plaintiffs, was understood by defendants, when made and while being carried out, to be an arrangement by which these goods were to be so supplied as payment in lieu of money for which Dewey & Hazelton had become responsible, and the minds of the parties did not meet and concur on any other arrangement, then defendants are not liable in this action, though plaintiffs may have understood the arrangement differently. But the court refused so to charge, and charged the jury that defendants are not liable, although the plaintiffs may have supposed them to be, if the jury find that there was no express or implied agreement that they should become so, for the reason that the goods were not delivered to them.

The jury returned a verdict for the plaintiffs for the amount claimed by them.

Judgment affirmed.

J. G. Sutherland and W. L. Webber, for plaintiffs in error.

W. Newton and G. V. N. Lothrop, for defendants in error.

Martin, Ch. J. Manning, J. concurred. Campbell, J. dissenting. Christiancy, J. concurred.

OPINION

Martin Ch. J.:

As the action purports to have been brought by Dewey & Crossman for the use of Terbell and others, the plaintiffs in error insist that proof should have been made of the assignment before judgment could be rendered against them; as they claim...