Forster v. Green

• Decision Date: 24 December 1896
• Citation: 111 Mich. 264,69 N.W. 647
• Court: Michigan Supreme Court
• Parties: FORSTER v. GREEN ET AL.

69 N.W. 647

111 Mich. 264

FORSTER v. GREEN ET AL.

Supreme Court of Michigan

December 24, 1896

Error to circuit court, Wayne county; Fred H. Aldrich, Judge.

Action by Andrew Foster against William S. Green and another. There was a judgment for plaintiff, and defendants bring error. Reversed.

Julian G. Dickinson, for appellants.

William Look and Ira G. Humphrey (Edward Minock, of counsel), for appellee.

MONTGOMERY J.

Defendants are trustees of the estate of William B. Wesson. Defendant Green also acts as agent for Mrs. Wesson paying her bills, and taking receipts therefor, and accounting to her. Defendant Green employs one John Brinket who was a former employ� of Mr. Wesson in his lifetime, and who still continues to look after Mrs. Wesson's affairs to some extent. In the spring of 1892, plaintiff was employed to work for Mrs. Wesson. Mr. Brinket did the business for Mrs. Wesson, and testifies that the hiring was under instructions from Mrs. Wesson, and that he did not confer with defendants at all about hiring plaintiff. Witness Brinket, who was called for the plaintiff, also testified that he had no general authority to employ workman in behalf of the defendants, and that he never hired any men except under special instructions from Mr. Green. According to the plaintiff's testimony, after he had been employed some time, he was told by Mr. Brinket to go up and watch a grove on Baldwin avenue. This grove belonged in part to the Wesson estate, and in part of Mrs. Wesson. Plaintiff proceeded to follow this instruction, and, as he testified, visited this grove four or five times a week from March, 1892, to September, 1894, and this action is brought to recover for these services; plaintiff claiming that the direction to go and look after this grove amounted to an independent hiring on behalf of the defendant estate. During all this time, at the end of each month, plaintiff was paid his $40 per month and signed receipts, both before and after March, 1892, reading, in substance, as follows: "Received of Lacyra E. Wesson, forty dollars, in full for services to date." These payments and receipts continued down to the time that plaintiff ceased work.

Plaintiff's own testimony as to the instructions given him to look after this grove is as follows: "On the 1st day of March 1892, Mr. Brinket gave me an order to see to that bush,-so much timber was cut up. Q. How long did you work watching before you were called to look to the grove? A. From the 14th of May, 1891, to the 1st of March, 1892. Q. It was then you were ordered to look after the grove? A. Yes, sir. I looked after the grove two years and a half. There was no bargain made as to how much I was to receive for watching the grove. Q. You said there was no bargain? A. No bargain." On cross-examination, witness testified: "Mr. Brinket was my boss. That was my first experience with Mr. Brinket. I haven't ever been in his employ there before. He hired me. Whenever there was an order he gave me the order. Q. You have stated how he hired you? A. Yes, sir. Q. He sent you to Mrs. Seyburn? A. Yes, sir. Q. And Mrs. Seyburn told you to go to work? A. Yes, sir; and I continued to watch inside the fence. I had nothing to do outside the fence. Mr. Brinket gave me an order to see after the bush. ...