Fisk v. Mills

• Decision Date: 19 March 1895
• Citation: 104 Mich. 433,62 N.W. 559
• Court: Michigan Supreme Court
• Parties: FISK v. MILLS.

62 N.W. 559

104 Mich. 433

FISK v. MILLS.

Supreme Court of Michigan

March 19, 1895

Error to circuit court, Ionia county; Peter F. Dodds, Judge.

Action by Mark J. Fisk against Laura A. Mills. From a judgment for plaintiff, defendant brings error. Reversed.

R. A Hawley, for appellant.

Geo. E & M. A. Nichols, for appellee.

MONTGOMERY, J.

This is a suit upon a promissory note for $210.90, executed by defendant and her husband to Dr. David Kelley, and by him assigned to plaintiff. The plaintiff, assignee of Dr. Kelley recovered judgment for the amount of the note. The fact appearing that defendant was a married woman, the burden rested upon the plaintiff of showing that the consideration of the note passed to her. Fechheimer v. Peirce, 70 Mich. 440, 38 N.W. 325. The consideration of the note consisted, in part, of a debt claimed to be owing from defendant, Mrs. Mills, for merchandise furnished upon her sole credit. There was evidence from which the jury might have found that this merchandise was purchased upon her agreement to pay for it, and that the credit was extended solely to her. The further consideration for the note was money paid to the husband of defendant, Mr. Mills, amounting to $103. The charge of the court left the jury to find whether this money was in fact advanced for the benefit of Mrs. Mills, and at the close of the charge plaintiff's counsel made a suggestion, as follows: "If Dr. Kelley understood that the money was for her use and benefit, money that he let her have, and at the time that he let her have the money she understood it, why, he would be bound. The Court: Yes, if she told him that it was for her benefit at the time she got it, and Dr. Kelley so understood it, then it is binding upon her." The only testimony offered for the purpose of showing this understanding was that of Dr. Kelley himself. he testified, on direct examination, as follows "Mrs. Mills told me to let Mr. Mills have the money, and I let him have it on that order, as I have other things. I let him have it on that order from her. Q. Did she tell you what was going to be done with this money? A. It was in payment of making a well, or fixing the well I understood, at the house where she lived. She said let him have it to cancel a debt for that well where she lived. I let her have either $15 or $25, I am not able to say which. I gave it to her direct to make up the $210. There was nothing said at the time between Mrs. Mills and me that this $15 or $25 was for her husband. It wasn't for her husband. I gave it to her individually." On cross-examination "Q. I understand that $90 of this money you paid to Mills? A. By her order. Q. I didn't ask you about that. You paid it to Mr. Mills? A. I handed it to Mr. Mills. Q. You knew at the time you paid it to him, didn't you, that he was going to pay for a well upon his farm? A. I understood that so, but I understood since it wasn't. Q. That was your understanding at that time? A. There was some talk that he was. I didn't know he was, and I don't know now he was. ...