Reiser v. Portere

• Decision Date: 02 July 1895
• Citation: 106 Mich. 102,63 N.W. 1041
• Court: Michigan Supreme Court
• Parties: REISER v. PORTERE.

63 N.W. 1041

106 Mich. 102

REISER v. PORTERE.

Supreme Court of Michigan

July 2, 1895

Error to circuit court, Wayne county; Henry N. Brevoort, Judge.

Action by Anthony Reiser against Edward Portere in a justice's court. Pending an appeal to the circuit court, defendant died. Jane Portere was appointed administratrix, and the case proceeded. From a judgment for defendant, plaintiff brings error. Affirmed.

B. T. Prentis, for appellant.

Samuel W. Burroughs, for appellee.

GRANT J.

Plaintiff sued Edward Portere in justice's court to recover a balance of $155.67 for lumber alleged to have been sold by plaintiff to him, and used in the construction of a house for Mr. Portere. Mr. Portere died after an appeal had been taken to the circuit court. The defense was that Mr. Portere made a contract with plaintiff and one Krebs by which they agreed to furnish the material and build the house for $455 and that he had paid the contract price. Plaintiff gave evidence tending to show that he sold the lumber to Mr Portere; that he was not in partnership with Krebs; and that Mr. Portere had paid him $100. The defendant gave evidence tending to support her theory. Verdict and judgment were for the defendant.

1. The justice of the peace before whom the case was tried (a witness for the plaintiff) testified that Mr. Portere testified upon the trial before him that he knew the lumber belonged to plaintiff; that he hauled part and plaintiff hauled part of it; that he paid plaintiff $50 at one time, and $50 at another time, for which he took receipts. On cross-examination, the witness was permitted to testify, under objection, that Portere testified that he had paid the entire bill for building the house, that he let the entire job-work and materials-to Krebs, and supposed that plaintiff was in partnership with him. We find no error in this. The defendant was entitled to the entire statement made by Portere in the trial before the justice, and to show what he said in explanation of his payments to plaintiff. The fact that Portere knew that the lumber came from plaintiff's yard, and that he (Portere) hauled part of it, were as consistent with the defendant's as with the plaintiff's theory.

2. Plaintiff was asked upon cross-examination if he had not stated to certain persons, naming them, that he was in partnership with Krebs in the building of Portere's house. These persons were produced, and testified that plaintiff made such statements to them. It is insisted that these were impeaching questions, and that the time and place were not fixed. Counsel seems to have forgotten the rule that the statements of a party litigant adverse to his own claim and interest are always admissible.

3. Complaint is made of the refusal of the court to instruct the jury that "if you find that deceased, Edward Portere bargained for this lumber, and received it from plaintiff and used it or had it used in his house, he is bound to pay for it; and, if it had not been paid for, plaintiff is entitled to recover." The objection to this request is that it...