Powers v. Russell

• Decision Date: 07 November 1872
• Citation: 26 Mich. 179
• Court: Michigan Supreme Court
• Parties: Sarah Powers v. Frederick G. Russell

26 Mich. 179

Sarah Powers v. Frederick G. Russell

Supreme Court of Michigan

November 7, 1872

Heard October 31, 1872

Error to Van Buren circuit.

Judgment of the circuit court and that of the justice reversed, with costs to plaintiff in error, of all the courts.

Foster & Coleman, for plaintiff in error.

W. G Tucker and H. F. Severens, for defendant in error.

OPINION

Christiancy Ch. J.

Russell defendant in error, brought suit (by attachment) before a justice of the peace, against Mrs. Powers, the plaintiff in error, for the price of certain goods which he claimed to have sold her. At the time of the sale of the goods she was a married woman living with her husband, and the goods were purchased for the use of the family.

The justice rendered a judgment in favor of the plaintiff (below), which was removed to the circuit court for the county of Van Buren, by defendant (plaintiff in error), and there affirmed. The case now comes to this court by writ of error.

The justice's return to the certiorari is in the following words:

"I Harry C. Church, the justice of the peace in the writ hereto annexed named, do certify to the circuit court of said county, that before the coming to me of the said writ, to wit: On the fifteenth day of March, A. D. 1871, at the request of Frederick G. Russell, in the said writ named, I issued a writ of attachment, directed to any constable of said county, to attach so much of the goods and chattels of the defendant therein named (except such as are exempt by law from execution), as will be sufficient to satisfy said demand of said plaintiff; and that he return said attachment to me, the said justice, at my office, in the township of Decatur, in said county, on the 25th day of March, A. D. 1871, which writ of attachment was, on or before the return day thereof, delivered to me by William Mead, a constable of said county, with a return thereon signed by him, that the same was personally served on the 16th day of March, then instant.

"And I do also certify that, at the time and place above specified for the return of said writ of attachment, the said parties appeared before me. Plaintiff declared verbally on the common counts in assumpsit. Defendant pleaded the general issue; and they then and there consented to adjourn said cause to the 28th day of April, then proximo, at ten o'clock in the forenoon, at which time and place the said parties appeared. And I, the said justice, thereupon proceeded to try the said cause.

"On the trial of said cause, Frederick G. Russell was sworn, and testified that he was plaintiff in this suit. 'Have known Mrs. Powers within the last six years past; have sold her goods in Decatur.'

"Cross-examined. 'Have been acquainted with Mrs. Powers, the defendant, since October 12th, 1870; first got acquainted with Mrs. Powers in my store in Decatur; she was in my store to purchase goods; the first thing sold and charged to her was ribbon; can't state any length of time I have known Mrs. Powers; I keep books, have them in court.'

"Question. Will you produce them?

"Objected to, for the reason that no attempt has been made on the part of the plaintiff to introduce them. In all cases we are entitled to the best evidence, and in this case Russell sold the goods, delivered them, gave the credit, and remembers it all, and he could not use his books, and neither can they. If they desire them they must employ the power of this court and obtain them; and further, no reason has been shown for their introduction, and if they could be introduced it would be for some reason, not because an attorney desired it. Objection sustained. To which ruling of the said justice the counsel for the defendant did then and there except.

"'Mrs. Powers is the lady here in court; I charged the goods to her, individually.'

"Question. Did you know, at the time you sold her the goods, that she was a married woman?

"Objected to as irrelevant and immaterial. Objection sustained. To which ruling of said justice the counsel for the defendant did then and there except.

"Mrs. Sarah Powers, sworn on the part of the defendant. 'I live in South Bend, Indiana; I know the plaintiff in this suit; I got acquainted with him in his store in Decatur; I have lived in Decatur; I moved here in December, 1869; my name is Sarah Powers; I am a married woman, and was at the time these goods were bought; I was living with my husband, Thomas Powers, at that time, and afterwards, and all the time I lived in Decatur.'

"Question. Did you carry on any business or trade here while living in Decatur, separate from your husband's?

"Objected to for the reason that it was irrelevant and immaterial. Objection sustained. To which ruling of said justice the counsel for the defendant did then and there except.

"'I did get goods at Russell's store; my husband did send me for goods at Russell's; I put these goods to the family's use; I was in the habit of getting goods for the family while in Decatur.'

"Question. For whom did you get goods at Russell's?

"Objected to as irrelevant and immaterial. Objection sustained. To which ruling of said justice the counsel for defendant did then and there except.

"Question. To what use were these goods put?

"Objected to as irrelevant and immaterial. Objection sustained. To which ruling of the said justice the counsel for the defendant did then and there except.

"'The goods bought at Russell's store, between October 21st, 1870, and January 25th, 1871, were cloth for girl's sacque, some socks, lady's hat, cotton flannel, hose, nubia, table cloth, towels, lace, buttons, thread, and silk.'

"Cross-examined. 'The first five dollars I paid Russell, my husband got for playing at a dance at Millburg. My husband got the ten dollars from the band, and five dollars he sent me from South Bend.'

"And I also certify the foregoing is substantially all the testimony given on the said trial, and that after hearing the proofs and allegations of the parties, I, the said justice, did forthwith render judgment in favor of the plaintiff, against the defendant, for seven dollars and five cents damages, and five dollars and twenty cents costs.

"All of which I send with process, pleadings and other things touching the aforesaid proceedings and judgment, as by the said writ I am commanded.

"Given under my hand the 12th day of June, A. D. 1871.

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