Hirshfield v. Waldron

• Citation: 20 N.W. 628,54 Mich. 649
• Court: Michigan Supreme Court
• Decision Date: 23 September 1884
• Parties: HIRSHFIELD v. WALDRON.

20 N.W. 628

54 Mich. 649

HIRSHFIELD v. WALDRON.

Supreme Court of Michigan

September 23, 1884

Error to Muskegon.

Stephen H. Clink, for plaintiff.

Cook De Long, Fellows & Fellows, for defendant.

CHAMPLIN J.

Plaintiff was engaged in business as a retail dealer in clothing, in the city of Muskegon. Three doors from him on the same street the defendant was engaged in business as a retail dealer in boots and shoes. The parties had business transactions with each other, which resulted in an action brought by plaintiff against defendant to recover the value of goods sold and delivered. Defendant pleaded set-off. A trial was had which resulted in a judgment for plaintiff, from which defendant appealed to the circuit court. On the trial in that court the defendant admitted the items of plaintiff's claim as established at the sum of $68.75. The defendant introduced evidence to establish his set-off, and the only contention is over an item in defendant's bill of set-off of $20 as cash paid to plaintiff. The evidence showed that in 1881 the plaintiff and Moses Hirshfield were copartners doing business under the firm name of D. & M. Hirshfield; that the first part of the year 1882 Moses Hirshfield bought out David's interest in the firm assets and conducted the business alone for one year, when he sold out to plaintiff all the assets including book-accounts and credits. The plaintiff and Moses both testified that while doing business in the firm name of D. & M. Hirshfield they never authorized any clerk or person in their employ to receive any payment from Mr. Waldron on account, and that they never received the $20 in dispute.

On cross-examination plaintiff testified that a bill of goods produced by defendant, and made out under the bill-head of D & M. Hirshfield against defendant, was in the handwriting of Moses Hirshfield. He also testified that Barney Ash was in the employ of D. & M. Hirshfield on the thirteenth day of December, 1881, but in what capacity or what authority he had was not asked him, and does not appear from his testimony. The defendant testified that on the thirty-first of December he charged on his blotter: "Hirshfield to cash $20, paid to man." That the bill in Hirshfield's handwriting was on that day brought into his store by Barney Ash, a clerk in the employ of D. & M. Hirshfield, who said he was sent there by Mr. Hirshfield to get some money, and that he gave him $20 and entered it in his book, and that the entry was made right along in the ordinary course of his business, and that he also made an entry upon the bill at the same time. He was asked by his counsel: "And you paid it because you thought this bill came from Hirshfield?" Answer. "Yes; I knew it because the bill was on Mr Hirshfield's bill-head. I have often sent my man out to collect money." On cross-examination he testified as follows: Question. "You say you paid Barney Ash $20 in cash on thirteenth of December, do you?" Answer. "Yes, sir." Q. "Did you ever have any authority from either of the Hirshfields to pay Ash any money?" A. "Nothing more than I had that bill when he came in with it." Q. "That is all the authority you had?" A. "I had that for authority."

The foregoing, as appears from this record, is all the evidence offered tending to prove the authority of Barney Ash to collect or receive the $20 in question. The counsel for plaintiff, at the close of the testimony, moved the court to strike out the item of $20, cash paid to Ash, for the reason that the defendant himself said that he...