Frankel v. Coots
| Decision Date | 04 June 1879 |
| Citation | 1 N.W. 940,41 Mich. 75 |
| Court | Michigan Supreme Court |
| Parties | ISADOR FRANKEL v. WALTER H. COOTS. |
The admissibility of certain testimony considered, and evidence held competent. A general charge, if proper when considered as a whole, is not affected by the fact that isolated portions of it might, standing alone, be objectionable. Under a general issue defendant introduced, without objection in the court below, evidence of a defense that could only be properly offered under a special notice attached to the plea. Held, the objection not having been urged in the court below was to be deemed waived.
The questions raised in this case grow out of an assignment made by Benjamin Schloss to plaintiff in error, and which was attacked by Schloss's creditors as being fraudulent. The assignment bore date February 1, 1877, and the assignee claimed to have at once taken possession of the property.
The first error assigned relates to the admission of Freeman's testimony as to his conversation with the assignor some six weeks after the date of the assignment. This was objected to, unless it appeared the assignee was present.
While there has been a tendency shown to permit a somewhat wide range in attacking these assignments, for the purpose of showing fraud, still it must be borne in mind that the assignor may, himself, change his views, and seek by subsequent acts to change what was originally honest into having the appearance of a fraudulent character. The rule therefore, should not be so general as to permit such a result, if it can be avoided. Upon this subject see Baldwin v. Blanchard, 11 Mich. 389; Flanigan v Lampman, 12 id. 58; Smith v. Mitchell, 12 id 180; and Angell v. Rosenburg, id. 241
The evidence in the present case showed that when the witness entered the store he found Mr. Schloss, the assignor, and a clerk there; that he inquired of Mr. Schloss about the books; that Schloss produced them, also a list of assigned accounts, and made the statements testified to and complained of. This testimony fairly tended to show that Schloss was in possession of the assigned property, and of the books, accounts, etc. If the assignor permitted this then we are of opinion the statements made as to what had been assigned, and to whom, were admissible.
2. Certain books of account were, it is claimed, erroneously admitted. It was claimed that these books did not show any indebtedness of Benjamin...
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