Rathbun v. Parker

• Decision Date: 13 July 1897
• Citation: 72 N.W. 31,113 Mich. 594
• Court: Michigan Supreme Court
• Parties: RATHBUN v. PARKER.

72 N.W. 31

113 Mich. 594

RATHBUN v. PARKER.

Supreme Court of Michigan

July 13, 1897

Error to circuit court, Shiawassee county; Charles H. Wisner Judge.

Action by Bethuel D. Rathbun against George A. Parker. Judgment for plaintiff. Defendant appeals. Reversed.

We are favored with no brief on the part of the appellee. We must therefore assume that they are content with the statement of facts made in the appellant's brief, which we adopt "Plaintiff, in the fall of 1892, was the owner of a small store in the village of Bancroft, Shiawassee county Michigan. The defendant at that time lived on a farm near the village of Bancroft, was postmaster and justice of the peace and also was buying potatoes in the village of Bancroft, and selling them in the city of Detroit. The 25th of November 1892, the defendant was in Detroit, and stopped at Rice's Hotel, where he casually met one O. F. June. June was showing a patent window screen patented by one S. N. Tierney, and gave defendant some circulars describing the patent. That evening, after Parker arrived home, and while in the post office, he was showing the circular to some mechanics and other citizens of Bancroft, when plaintiff came in, and took part in the conversation, borrowed a circular, and took it home with him. Plaintiff wrote June the next day the following letter: 'Bancroft, Mich., Nov. 26, 1892. Mr. O. F. June, Esq.-Respected Sir: Mr. George Parker, of this town, has called my attention to Tierney novelty window screen, and tells me that you are desirous of selling territory. From what I see of it and am able to judge from the cut, I am quite favorably impressed with it, and shall be pleased to hear from you further. I have a grocery stock and shoe shop in my place here, which I inventoried at nearly $4,000, which I would like to turn into some such enterprise. If you can think of entertaining such a proposition, please reply by return mail. Should you have one or more states entire left, I desire to have you estimate thereon, but more especially the counties near by Bancroft. Please be prompt, and oblige, yours, respectfully, B. D. Rathbun.' On the 2d or 3d of the following December, 1892, plaintiff and defendant went to Detroit together, and there met June, and the plaintiff examined the screen. On the 5th of December, 1892, June came to Bancroft to sell them some territory, and there he made a bargain with Rathbun and Parker. He deeded the plaintiff and defendant the entire state of Wisconsin, and all of Michigan, except 16 counties, for which Rathbun gave June a bill of sale of a stock of goods, and Parker claims to have given June a note of $200 against a third party, and two notes of his own, amounting to $800, for his share of the patent right. June stayed in Bancroft a week or ten days, and finally sold the goods to Charles Parker for $800, and then returned again to Detroit. Parker and Rathbun visited some manufacturers in Owosso, Ovid, and some jobbers in Saginaw and Detroit, for the purpose of seeing about selling the screens in case they were manufactured. They bought a few of the castings manufactured, but were unable to get any great quantity at what they considered a fair price. June represented to them that Campbell and Fox were going to start a factory in Birmingham, and it would be better to get them there. But this they were unable to do; so they visited Detroit at different times, and went to Monroe, to try and get the castings, and finally they bought 25 pounds at Ft. Wayne, Ind., but they proved to be of a very poor quality, and they failed to find any one who would manufacture the castings. This took them to nearly spring, and Parker claims that they agreed to postpone doing anything further until fall; at least nothing further was ever done in the way of manufacturing the screens either by the plaintiff or defendant. In the spring of 1893 defendant went to Chicago, and engaged in a small business there. He took plaintiff's son with him, and took him into his employ, but discharged him after a short time. Soon after his discharge, and on the 22d day of May, 1893, plaintiff commenced this suit against defendant, claiming conspiracy between him and June and Tierney to cheat and defraud him, the said plaintiff. Plaintiff recovered verdict and judgment for $725.61." The declaration contains two counts. The first alleges that plaintiff exchanged his stock of merchandise with one S. N. Tierney for a deed of letters patent on this screen to himself and defendant, with the right to manufacture it in the states mentioned, in consequence of the false and fraudulent...