McDonough v. Heyman

• Decision Date: 01 February 1878
• Court: Michigan Supreme Court
• Parties: John McDonough and Joseph Stevens v. Manuel Heyman

38 Mich. 334

John McDonough and Joseph Stevens v. Manuel Heyman

Supreme Court of Michigan

February 1, 1878

Submitted January 16, 1878

Error to Eaton.

Assumpsit. Defendants bring error.

Judgment affirmed with costs.

M McIntyre and Frank A. Hooker for plaintiffs in error. The variance between Daniel W. Brock and D. M. Brock is fatal Gwinnett v. Phillips, 3 T. R., 646; Warren v Bean, 6 Wis. 120; 393; Eilert v. Oshkosh, 14 Wis. 586; Gilbert v. Hanford, 13 Mich. 43; Bowen v. Mulford, 5 Halst. 230; Com. v. Perkins, 1 Pick. 387; Com. v. Hall, 3 Pick. 262. The admissions of an alleged agent cannot prove his agency, Hatch v. Squires, 11 Mich. 185.

D. P. Sagendorph and E. A. Foote for defendant in error. A variance that does not mislead may be disregarded, and after verdict, is cured by the statute of jeofails, Comp. L., § 6051 (East Boston Timber Co. v. Persons, 2 Hill 126; Rorabacher v. Lee, 16 Mich. 169; Reed v. Gage, 33 Mich. 179), and the law takes no account of middle initials, Choen v. State, 52 Ind. 347: 21 Amer. Rep., 179; Van Vorhis v. Budd, 39 Barb. 479. Payment of a draft made by an agent, without objecting to it, would tend to prove a continuing agency, Stroh v. Hinchman, 37 Mich. 490; Kornemann v. Monaghan, 24 Mich. 36.

Marston, J. Campbell, C. J., and Graves, J., concurred. Cooley, J. concurred.

OPINION

Marston, J.

Defendant in error brought assumpsit against plaintiffs in error, declaring specially and also upon the common counts. Attached to the declaration was a copy of a draft purporting to be drawn in the name of McDonough & Stevens by D. M. Brock, payable to the order of Heyman and endorsed by him.

It appeared upon the trial that the draft was drawn by Damel W. Brock, claiming to act as the agent of McDonough & Stevens, and it was claimed that this was a variance, in that the initial of the middle name was W. and not M. Admitting as claimed that there was a variance in this respect, yet it was one that could not have misled the defendants nor injured them in any way. Whether the initial letter of Brock's middle name was M. or not, was a matter of but little if any consequence, and in no way affected the parties to their prejudice.

The material question was as to the authority of Brock to bind the defendants in this manner. It appeared that he had previously drawn a similar draft payable to the order of Heyman which had been paid. And in connection with proof of this fact, Heyman was asked what Brock said to him at the time this first draft was drawn and endorsed by Heyman as to his [Brock's] authority to draw in the name of defendants. This was objected to for the reason that Brock's agency or authority to draw could not thus be proven by his own statements. This question was not admissible for such a purpose, but to show that in the drawing of that draft and the one in question he assumed to act in the same capacity, for unless such was the case there would be no significance in the mere fact that a draft had been drawn by him upon defendants and paid. It was the fact that he then claimed to act as their agent, and the payment of the draft he had then drawn, which gave color to his assumption of authority to draw the draft relied upon in this case.

An objection was made to a question asked plaintiff as to what he did after receiving notice of the dishonor of this draft, upon the ground that this was an attempt to prove a contract different from that set up in the declaration. There is no force in the objection. Under the pleadings the plaintiff had a right to show that as an endorser he had paid the draft.

A letter had been offered in evidence by the plaintiff from defendants to Brock as tending to show that the latter was acting as their agent. In reply to this, defendants offered to show by parol that the letter was but a circular and similar to what they had sent to each of the parties who had dealings with them. It did not appear, however, that this letter was similar to those usually sent, and for...