Muirhead v. Dewey

• Decision Date: 16 April 1878
• Citation: 38 Mich. 676
• Court: Michigan Supreme Court
• Parties: James Muirhead v. James Dewey et al

38 Mich. 676

James Muirhead v. James Dewey et al

Supreme Court of Michigan

April 16, 1878

Submitted April 11, 1878

Error to Wayne.

Assumpsit by Muirhead against James and Ziba Dewey, co-partners as James Dewey & Son, on an agreement made by them to pay Muirhead, who was clerk for Justice Potter, to collect for them a judgment theretofore rendered before the justice, in favor of Dewey, Middleworth & Co. and against James Mackey. Defendants had judgment below and plaintiff brings error.

Judgment affirmed with costs.

Charles Kudner for plaintiff in error. A party to an agreement can waive the manner of performance by modifying the contract Bishop v. Busse, 69 Ill. 403; Hewitt v Brown, 21 Minn. 163; Peer v. Kean, 14 Mich 354; and if the other party follows his directions in executing it, he cannot complain of the manner of performance, Kansas R. R. v. McCoy, 8 Kan. 538; Garrison v. Dingman, 56 Ill. 150; Pike v. Nash, 3 Abb. (N. Y.), 610; Ketchum v. Zeilsdorff, 26 Wis. 514; Duffy v. O'Donovan, 46 N. Y., 223.

Cleaveland Hunt for defendant in error, cited Hickey v. Baird, 9 Mich. 32.

OPINION

Marston, J.

The court was right in charging the jury that plaintiff had not shown such a performance of the agreement to collect the judgment as would entitle him to recover. The plaintiff testified "that in January, 1875, I spoke to the defendant James Dewey about his collections, and he said he had a judgment in their favor against one Mackey, and spoke to me about collecting it, and said that if I would collect it they would give $ 50. I agreed to do it. I thereupon had an execution issued on said judgment, and gave it to William W. Witherspoon, a constable, and directed him to collect it; that Witherspoon reported to me that he had called upon Mackey two or three times, and I instructed him what to do. I afterwards had a conversation with Mr. Dewey about making a levy on Mackey's interest when he was in partnership with a Mr. Dee, in which I understood that Mackey would pay the judgment in the fall, and we came to the conclusion to let the matter rest there."

In the fall defendants, by letter addressed to the justice before whom the judgment had been rendered, directed him to accept the judgment debtor's notes payable in three, six and nine months in satisfaction of the judgment and costs. The justice handed this letter to plaintiff, who was a clerk in his office, and he procured the notes and...