Maclean v. Fitzsimons

• Decision Date: 25 April 1890
• Citation: 45 N.W. 145,80 Mich. 336
• Court: Michigan Supreme Court
• Parties: MACLEAN v. FITZSIMONS et al.

45 N.W. 145

80 Mich. 336

MACLEAN v. FITZSIMONS et al.

Supreme Court of Michigan

April 25, 1890

Appeal from circuit court, Wayne county, in chancery; CORNELIUS J REILLY, Judge.

Russel & Campbell, (Otto Kirchner, of counsel,) for appellant.

J T. Keena, (Don M. Dickinson, of counsel,) for appellees.

CHAMPLIN, C.J.

The defendants interposed a general demurrer, for want of equity to a bill of complaint filed by complainant, in which he states that, prior to the 6th day of October, 1885 defendants were copartners in the wholesale grocer business under the name of Beatty, Fitzsimons & Co., and had in their employ Robert Beattie as a traveling salesman. That, shortly prior to the date above, they had ascertained that Robert was behind in his accounts about $2,000, and threatened to discharge him unless he paid or secured them for the amount of the shortage. Robert applied to complainant to indorse his note in amount sufficient to cover such shortage, which complainant refused until he interviewed Fitzsimons in regard to the matter; that Fitzsimons represented to complainant that the sum of $2,000 was the total amount of Robert Beattie's indebtedness; that, unless it was paid or secured, they would be obliged to discharge him; and that, if he would indorse said notes, they would retain said Robert in his position with said firm, and retain out of his salary the sum of $60 a month during each month until the maturity of the notes, and also keep up the premiums upon a policy of insurance upon the life of said Beattie during the same period. That said Fitzsimons also assured complainant that, by so doing, said Beattie would secure his position, and be enabled to earn a livelihood, and also make good the amount of his shortage. That complainant, relying solely upon the representations of said Fitzsimons that the total of said Beattie's indebtedness was only $2,000, and that, if complainant would indorse Beattie's notes for that amount, said Beattie would be retained in his position and enabled to pay the said indebtedness by having $60 deducted from his salary each month, indorsed three notes made by Beattie to said Beatty, Fitzsimons & Co., dated October 6, 1885,-one for $700, payable in one year; one for $700, payable in two years; and one for $600, payable in three years,-all bearing 7 per cent. interest; which notes were delivered to the defendants for the purpose above stated, and, as complainant is informed and believes, are still held by them. The defendants thereupon executed and delivered to complainant the following instrument in writing: "Detroit, 6th Oct., 1885. Dr. Maclean-Dear Sir: Out of the monthly salary coming to Mr. Beattie we agree to retain sixty dollars ($60) per month, and indorse it on Robert Beattie's notes made and executed this day, and also to pay his premium and assessments due on his life insurance during the time on which said notes are made on. Yours, truly, BEATTY, FITZSIMONS & Co." That after October 6, 1885, complainant heard nothing concerning said Beattie, and supposed that said defendants were carrying out their agreement as aforesaid, until the 9th of October, 1886, when he received notice that the aforesaid note for $700, payable one year after date, had been protested for non-payment. That he thereupon made inquiries of said defendants, and was informed by them that, for about four months after the making of said agreement and notes, said Beattie was retained in his position, and $60 deducted each month from his salary to be applied upon said debt. At the end of said four months, said Beattie had been discharged, because, as defendants claimed, his shortage, instead of being only $2,000 at the time of making said agreement and notes, was in reality much greater. And complainant avers that said Beattie was discharged by said defendants at the time and for the reason above stated, and that his indebtedness was in fact largely in excess of the sum of $2,000, which fact defendants knew, or might have known, at the time said notes were given. And complainant further avers that said Beattie was discharged in violation of said agreement and of complainant's rights. Complainant shows that no information was given him concerning the discharge of said Beattie until he discovered it as above stated, although his position as indorser for said Beattie was very materially and injuriously affected by the same.

That the retention of said Beattie was an essential part of the agreement under which he indorsed said notes; and, by the discharge of said Beattie...