Piehl v. Piehl

• Decision Date: 14 December 1904
• Citation: 138 Mich. 515,101 N.W. 628
• Court: Michigan Supreme Court
• Parties: PIEHL v. PIEHL.

101 N.W. 628

138 Mich. 515

PIEHL v. PIEHL.

Supreme Court of Michigan

December 14, 1904

Error to Circuit Court, Cheboygan County; Frank Shepherd, Judge.

Action by Frederick Piehl against Daniel Piehl. Plaintiff had judgment, and defendant brings error. Reversed.

Plaintiff and defendant are brothers. Their father, Frederick Piehl Sr., lived in Canada, where he died in April, 1900. He had three sons and one daughter. In 1895 he transferred to the defendant all his property, except some money, on condition that he take care of him the rest of his life. The property was worth about $1,500. The validity of the contract with his father is not assailed, and it appears conceded that he performed it. It was claimed by Katharine, the daughter that, in consideration of the transfer, defendant agreed to pay her $400 upon her father's death. For this she brought suit and obtained a judgment, which was reversed by this court. Ebel v. Piehl (Mich.) 95 N.W. 1004. The declaration is upon the common counts in assumpsit. A bill of particulars was demanded and furnished, as follows 'Amount due from Frederick Piehl, Sr., to Frederick Piehl, Jr., for cash loaned by said Frederick Piehl, Jr., to Frederick, Sr., at various times from 1877 to 1886, which said indebtedness Daniel Piehl assumed at the time he received an assignment of Frederick Piehl's property in 1896, and then and there promised and agreed to pay said amount to Frederick Piehl, Jr., upon the death of Frederick Piehl, Sr.--$400.00.' The plea was the general issue with notice of set-off. The declaration is based upon the doctrine of a novation. The case was tried upon that theory, and the court submitted it to the jury upon that theory, stating that it was essential for the jury to find: (1) That the father, Frederick Piehl, Sr., was indebted to Frederick Piehl, Jr., in the sum of $400; (2) that the father turned his property over to defendant with the distinct promise on his part that he would pay his brother that $400; (3) that plaintiff assented to that agreement, discharged his father, and looked to defendant for payment; (4) that defendant promised the plaintiff to pay the $400. The jury rendered a verdict for the plaintiff.

Frost & Sprague, for appellant.

M. F. Guinon, for appellee.

GRANT J. (after stating the facts).

1. It is urged that there is no evidence of an indebtedness from Mr. Piehl, Sr., to the plaintiff. When the plaintiff rested his case there was no such evidence. One Julia Mosser was called by the plaintiff to sustain his case and she testified on direct examination as follows: 'Q. Was there anything said by the old gentleman at that time that they were making that agreement why he should pay Fred that $400? A. No. Q. Didn't give any reason? A. No.' After plaintiff had rested, defendant moved to strike out plaintiff's testimony, and to direct a verdict for defendant. One of the reasons was that no original indebtedness had been proved. This question was argued just before a recess of the court. Upon the reassembling of the court, plaintiff recalled Julia Mosser, and she testified as follows: 'I did not understand the questions asked me as to the reason for grandfather directing Dan Piehl to pay Fred Piehl $400, and I desire to change my testimony. Q. Will you state to the jury what your grandfather said as to the reason of having Dan pay Fred the $400? A. Well, he said he owed it to Fred, and Uncle Dan was to pay it.' On cross-examination she testified: 'I have talked with the attorney since I gave my testimony this morning. They explained my testimony to me--what they wanted, and what it meant. I do not know what I did understand, and cannot remember any more. All I know is he got the money, and he was to pay Uncle Fred and Aunt Kate. He owed Uncle Fred $400, and Uncle Dan was to pay that after his death. I cannot remember the conversation when Uncle Dan was there; it is too long ago.' The recall of this witness was in the discretion of the circuit judge. Whether her explanation was reasonable was a question for the jury. It is true that the testimony upon her second examination is in direct conflict with that given on her first examination. While it may be difficult to understand how she could have misunderstood the question and answer given by her on her first examination, yet such matters are for the jury. The only...