Hirshfield v. Waldron

• Decision Date: 14 November 1890
• Citation: 47 N.W. 239,83 Mich. 116
• Court: Michigan Supreme Court
• Parties: HIRSHFIELD v. WALDRON.

47 N.W. 239

83 Mich. 116

HIRSHFIELD v. WALDRON.

Supreme Court of Michigan

November 14, 1890

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

De Long & O'Hara, for appellant.

H L. Delano, for appellee.

CHAMPLIN C.J.

On November 29, 1884, the plaintiff had a clothing store in the city of Muskegon. On that day, the defendant, who was a married woman living with her husband, came into his place of business with their only son, and picked out a coat and vest for the boy. She wanted an entire suit of clothes, but plaintiff did not have in stock any pants of the right size. The price of the coat and vest was $15.50. The plaintiff claimed on the trial that he knew the defendant for a number of years before that time, knew she was the wife of L. A Waldron, and knew she was living with him at that time. He knew that the boy was the only son of defendant and her husband, and that the coat and vest was for the boy, Leonard Jr. Plaintiff testified in his own behalf in the court below that when Mrs. Waldron came into the store and picked out the suit of cloths and ascertained the price she purchased the coat and vest, and told him to charge them to her, and she would pay it in a day or two, or within a few days, and that he did make the charge against her upon his blotter at that time. Upon cross-examination he was asked to repeat the language which she made use of, and he said that Mrs. Waldron said: "Charge it to me, and I will come in and pay it to you in a day or two." Upon further interrogation he testified that she did not say, "Charge it to me individually," but, "Charge it to me." Mrs. Waldron was a witness in her own behalf, and she testified to purchasing the goods at plaintiff's store, and testified as follows: "My son needed a suit of clothes, and I went to Mr. Waldron and asked him where I should go to get them, and he said: 'Mr. Hirshfield is owing me,' and I said I would go into Mr. Hirshfield's and get them, and I went into Mr. Hirshfield's and got them, and there wasn't anything said about charging them. I never told him to charge them to me or anybody else, and I took the clothes and went home. I never heard anything about it again until 1888, I think. In the mean time he had asked Mr. Waldron for it several times. Mr. Delano. I object to that. Question. You were not present? Answer. I was not. The Court. Well, I think that had better go out then. A. And that is all I know about it. I don't know anything more about it. When I went into the store afterwards, I think it was just before he sued me, I went into the store, and had a talk with him. And I said, 'Mr. Hirshfield, you know that I didn't tell you to charge those goods to me.' And he said 'I know you didn't, and that is just the reason I am going to collect it of you.' At the time I got the clothes I had not one cent in my own name, and I had never gone to any store in this town and had anything charged to me. And that's all I know about it." The plaintiff also upon the trial produced the blotter upon which the charge was made, and was cross-examined by the defendant's counsel as to that entry, and from his questioning, and the position of the "Mrs." prefixed to Mrs. Waldron's name, sought to show by the witness that that prefix was written after the original charge was made. It appears from the testimony that the prefix "Mrs." was in the margin of the book made by the red lines. Plaintiff was asked to show other entries where charges were partially in the margin, and he pointed out several.

At the conclusion of the testimony, the defendant's attorney requested the court to instruct the jury as follows "Before you can find for the plaintiff, you must be satisfied from the evidence, and that by a fair preponderance, that Mrs. Waldron told plaintiff to charge the goods to her individually, and that she would pay for them, and that plaintiff gave her the credit at the time. It is not sufficient that she got the goods from Hirshfield unless she ordered them charged as I have before stated." And the court immediately proceeded to instruct the jury substantially in accordance with the request in the following language: "Gentlemen, there is one request which has been handed up which I will give you: Before you can find for plaintiff you must be satisfied from the evidence, and by a fair preponderance of it, that Mrs. Waldron told plaintiff to charge the goods to her, and that she would pay for them, and that plaintiff gave her the credit at the time. It is not sufficient that she got the goods from Hirshfield unless she ordered them charged as I have before stated." He further instructed the jury as follows: "Gentlemen, that is all the point there is in this case. There is no dispute but what the goods were obtained, and that Mrs. Waldron got them, and for her son who was with her. It is simply a question of whether she told Mr. Hirshfield then to charge the goods to her, and that she would pay for them, as he says she did, or whether she did not, as ...