Houghton v. Maurer

• Decision Date: 19 November 1884
• Citation: 55 Mich. 323,21 N.W. 426
• Court: Michigan Supreme Court
• Parties: HOUGHTON and others v. MAURER.

21 N.W. 426

55 Mich. 323

HOUGHTON and others v. MAURER.

Supreme Court of Michigan

November 19, 1884

Error to Wayne.

Ed. E. Kane, for plaintiffs, appellants.

Jas. H Pound, for defendant.

CAMPBELL J.

Plaintiffs who are wholesale tobacconists doing business in Toledo, sued defendant, who is a retail dealer in Detroit for the price of two lots of cigars, one being liquidated by note and the other in open account. The defense was that the second lot was never purchased, and the first was paid for to an agent through whom the cigars had been ordered. Judgment was given for defendant. So far as the second lot is concerned, the testimony does not show any ordering by defendant, and it shows that Hamilton, the agent, got them back from defendant, who had, as he claims, done no more than receive them from the express company through which they had been consigned to him at Hamilton's request. It is difficult to see what there was to go to the jury on this item. But the court, nevertheless, left the facts to the jury, and they found in his favor, as we think they could not avoid doing.

The only question open to any controversy arose out of defendant's dealing with Hamilton, plaintiff's agent, who became a defaulter. The defendant was called on by Hamilton in September, 1882, and gave him an order for five or six thousand cigars, which Hamilton accordingly ordered from plaintiffs, who never had any personal dealings with defendant. Hamilton was plaintiffs' agent for making sales, and appears to have been working on commission. Defendant gave his note for the cigars received, dated October 2, 1882, for $110, payable in four months to plaintiffs' order at the Detroit Savings Bank. This note was protested, and taken up at the bank which discounted it by plaintiffs. The consideration is not disputed, but defendant, on November 13, 1882, was called on by Hamilton, and asked to advance upon it, and paid $100 at Hamilton's instance on a representation that he was collecting for the house, and needed it to make up $100 which he desired to deposit in bank. He gave a receipt in full.

Plaintiffs claimed that Hamilton had no authority to make collections for them. Defendant gave evidence of plaintiff Houghton's personal statements and admissions, which, if true, made out both authority and ratification. Houghton's own testimony showed that he made admissions which, at least, tended to corroborate the defense,...