Randall v. Dudley

• Decision Date: 05 January 1897
• Citation: 69 N.W. 729,111 Mich. 437
• Court: Michigan Supreme Court
• Parties: RANDALL v. DUDLEY.

69 N.W. 729

111 Mich. 437

RANDALL v. DUDLEY.

Supreme Court of Michigan

January 5, 1897

Error to circuit court, Saginaw county; Eugene Wilber, Judge.

Action by Robert M. Randall against Fred A. Dudley, on an alleged account stated. From a judgment in favor of plaintiff defendant brings error. Reversed.

John F O'Keefe, for appellant.

Hanchett & Hanchett, for appellee.

MONTGOMERY J.

The Cross Lumber Company was a corporation organized under the laws of this state. In May, 1892, an agreement was made between the Cross Lumber Company and defendant, by the terms of which the Cross Lumber Company was to furnish the capital to be used in the business of buying and selling shingles etc., and defendant Dudley was to manage the affairs of the concern, and the profits and losses were to be equally divided. The business was conducted under the name of F. A Dudley & Co., and was continued until the spring of 1894, when F. A. Dudley & Co. stopped doing business, closed out the stock on hand, and collected in the accounts as fast as collections could be made. The books of account were kept by defendant, Dudley, and, after the company had ceased active operations, defendant furnished the Cross Lumber Company with a statement from the books, showing the condition of the business. Plaintiff, claiming to have succeeded to the rights of the Cross Lumber Company, brings this action, alleging an account stated, and was permitted to recover in the court below.

Numerous errors are assigned, but we think the case must turn upon the question of the right of the plaintiff to maintain the action in his own name. On the trial it was objected that the plaintiff could not recover, for the reason that no sale or assignment of the Cross Lumber Company's claim to plaintiff was alleged in the declaration. Plaintiff seeks to avoid the force of this objection by claiming that plaintiff had succeeded to the rights of the Cross Lumber Company, and that the account stated was with the plaintiff. The circuit judge treated this fact as conclusively shown by the testimony, but we think that in doing so the court erred. Plaintiff states, in his testimony, that after the company ceased operations, defendant furnished the Cross Lumber Company with a statement from the books, showing the condition of the business. The statement sent was a trial balance, which did not purport to be a statement of account between plaintiff and defendant, but in which appeared a debit of the Cross Lumber Company, and also a debit of defendant, to F. A. Dudley & Co., and various other small items of account against different parties.

Plaintiff's testimony as to his succession to the business of the Cross Lumber Company is as follows: "Q. What became of the Cross Lumber Company? A. I purchased the stock of the stockholders, and closed the business up...