Hotchin v. Secor

• Decision Date: 11 October 1860
• Citation: 8 Mich. 494
• Court: Michigan Supreme Court
• Parties: John Hotchin and others v. Joseph K. Secor and another

8 Mich. 494

John Hotchin and others v. Joseph K. Secor and another

Supreme Court of Michigan

October 11, 1860

Heard October 4, 1860 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to St. Joseph circuit.

Defendants in error, composing the firm of Secor, Berdan & Co. brought suit in the court below, against plaintiffs in error, as persons composing the "White Pigeon Farmers & Mechanics' mercantile association," to recover the amount of an account of merchandise sold the association. The defense, among other things, was that the demand had been satisfied by the receipt, by Secor, Berdan & Co., of notes of May & Cloyes, two members of the association, in payment. The testimony taken to prove this payment was as follows:

Maro Wheeler, testified: "I am in the employ of the plaintiffs, and have been for four years. I am their principal bookkeeper, and have traveled some in selling goods, and collecting for them. I am acquainted with the firm of May & Cloyes--the firm was composed of William B. May, and Josiah W. Cloyes. My impression is, that I sold the firm of May & Cloyes goods, prior to June, 1856, in behalf of Secor, Berdan & Co. Orders which were received for goods, by Secor, Berdan & Co., were signed 'William B. May, agent F. & M. M. A.' There was no arrangement between myself, as the agent of the plaintiffs, and William B. May, or any one else, as to how goods were to be charged when the money did not accompany the orders. I did not, in the fall of the year 1856, take the notes of May & Cloyes, or any other notes, for the debt that is now claimed of the defendants. I made no settlement at any time during the month of December, 1856, or January or February, 1857, in behalf of the firm of Secor, Berdan & Co., with William B. May and Charles Cooper, or either of them; of my own knowledge, I know nothing of any note being sent by the plaintiffs, or either of them, to the firm of May & Cloyes, or to be returned by them to the plaintiffs, except that the amount of the goods claimed in this suit was sent by Mr. Secor to White Pigeon, and that a note signed by May & Cloyes was received in return; I learned this from Mr. Secor. The amount of said note was eight hundred and twenty-five dollars, and it was payable to the order of plaintiffs. A portion of this note was paid, and for the balance, on the 10th day of August, 1857, I took, whilst at White Pigeon, three notes, as follows: The notes were dated August 10th, 1856; one for $ 203.42, payable 20 days after date, to the plaintiffs' order--signed by 'May & Cloyes;' one of the same date, at 40 days, payable to same order, for $ 204.01, signed by 'May & Cloyes;' and one of same date, at 70 days, by the same parties, and to the same order, for $ 405.58. The above notes are still held by the plaintiffs. I can not give the amount of the payments made on said note, nor by whom the said payments were made. I do not recollect of taking any orders myself, after December 1st, 1856. On examination of the plaintiffs' books, I find there was a bill of eighty-eight dollars and forty-eight cents sold to May & Cloyes by the plaintiffs, on the 26th of December, 1856. In the month of August, 1857, I made an exchange of notes with the firm of May & Cloyes, by delivering to William B. May the note of May & Cloyes, and receiving therefor the three notes described above. After the insolvency of May & Cloyes, I called on May, and asked him for payment of the notes.

"The plaintiffs, previous to the 1st of June, 1856, had some dealings with May & Cloyes, which commenced May 12th, 1854, and continued until April, 1855. After that time, the plaintiffs sold goods to the "Farmers & Mechanics' mercantile association," of White Pigeon, in which plaintiffs supposed May & Cloyes were interested; the orders were in the name of the association--the goods were invoiced in their name, and shipped to them. The amount of goods sold to the association as above was three thousand one hundred and seventy-six dollars, and twenty-two cents; and the amount remaining due, unpaid, is about six hundred and fifty dollars. The goods were ordered by William B. May, claiming to be the agent of the 'association.' The notes taken by me, in August, 1857, were taken as an extension of the old note; the proposition was, to divide the old note into the three, as stated, at twenty, forty and seventy days, in order that they might be met more readily."

Joseph K. Secor, testified: "I am one of the parties plaintiff am acquainted with William B. May; have been acquainted with him some years, as the acting man of the firm of May & Cloyes, and as agent of the White Pigeon Farmers & Mechanics' mercantile association; he claiming to be such agent. We did business with the firm of May & Cloyes, one or two years previous to June, 1856. I do not remember when I first received information of the revival of the firm of May & Cloyes. I find goods charged to the firm, December 26th, 1856, and presume we had information of the revival, at that time. I find by the books of our firm, that on the 6th of March, 1857, there was a settlement made with the White Pigeon Farmers & Mechanics' mercantile association, they being credited with bills receivable to the amount of eight hundred and twenty-five dollars, which covers the balance for which this suit is brought. I do not recollect who signed said note for which credit was given. A...