Lynch v. Johnson

• Decision Date: 30 June 1896
• Citation: 109 Mich. 640,67 N.W. 908
• Court: Michigan Supreme Court
• Parties: LYNCH v. JOHNSON.

67 N.W. 908

109 Mich. 640

LYNCH v. JOHNSON.

Supreme Court of Michigan

June 30, 1896

Error to circuit court, Ingham county; Rollin H. Person, Judge.

Action by James H. Lynch against Holmes W. Johnson for the price of clothes sold by plaintiff to defendant, commenced in justice's court, and taken on appeal by defendant to the circuit court. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Defendant by introducing evidence after his motion for a nonsuit has been erroneously overruled, waives the error.

This suit originated in justice court, to recover the price of a suit of clothes sold by the plaintiff to the defendant in 1890. Plaintiff had verdict and judgment in both the justice and circuit courts, and defendant now brings the case to this court on writ of error. According to the testimony of defendant's father, the only witness sworn in his behalf, the defendant, at the time of the purchase was a little more than 19 years old. His father lived in Lansing. Defendant was employed as stenographer and clerk for the Detroit Stove Works, in Detroit, where plaintiff lived and conducted his business. He soon after left Detroit, and went to Cincinnati, Ohio, where he secured employment. He finally returned to Lansing, and went into business with his father. He failed to pay the account, and the bill was sent by plaintiff to Lansing for collection. When it was presented he made no claim of infancy. After the claim was presented to him, and before suit was brought, he wrote to the plaintiff the following letter: "Dear Sir: I have two propositions to make to you in regard to settling the account which you claim I owe you, to wit: I will send you a check at once for $35, upon advice that you will give me a receipt in full to date, or I will agree to send you a check of $5 per month until the face of the account is paid. Your attorneys have threatened suit against me, and probably have already begun it, and, though the account ought to have been paid, I presume I should be able to show some good reasons why it had not had attention. If you wish to accept either one of these propositions, advise me by return mail, and I will do exactly as I say. If you wish to let your attorneys settle it on this basis, I will give them ten papers, due thirty days apart, and pay one now. But, if you wish to take judgment, I shall have to allow you to do so. I could not raise money enough to pay it, and I am sorry to say I am not worth it, though I do not wish any judgment standing against me, if you will give me a fair chance to pay it now." On the return day of the summons his father appeared, and entered a plea of the general issue. On the adjourned day his father again appeared, and amended the plea by giving notice of infancy. Upon the trial plaintiff proved that defendant ordered the suit of clothes at his place of business in Detroit, the delivery and the value, and rested. Defendant then moved that the plaintiff be nonsuited, and the case dismissed, because plaintiff had not shown that the clothes were necessaries, or that the contract had been ratified. This was denied, and the father was then introduced as a witness for the defendant, and testified to his age. On cross-examination he testified that his son left home in 1889, and that he always furnished his son with everything in the way of clothing that he asked for.

Thomas & Collingwood, for plaintiff in error.

William W. Osborn, for defendant in error.

GRANT J. (after stating the facts).

1. When the motion was made, defendant had not rested, and, after its denial, proceeded to introduce testimony. He thereby waived all rights under the motion. Totten v. Burhans, 103 Mich. 6, 61 N.W. 58, and cases cited; Morley v. Insurance Co., 85 Mich. 210, 48 N.W. 502. The motion, however, was properly denied. The burden of proof to show infancy was on the defendant. Simmons v. Simmons, 8 Mich. 318; Stewart v. Ashley, 34 Mich. 183.

2. The only evidence of defendant's age was the testimony of his father, and it is now urged that the court erred in submitting this question to the jury. It is a sufficient reply to this contention that the defendant did not request the court to so instruct the jury. We need not, therefore, determine the question whether defendant's age was conclusively proven.

3. These clothes were within the class known as "necessaries." The burden of proof was then upon the defendant to show that they were not necessaries, and that he was supplied with all such necessaries by his father. Tyler, Inf. �� 74,...