Ruppe v. Peterson

• Decision Date: 03 November 1887
• Citation: 67 Mich. 437,35 N.W. 82
• Court: Michigan Supreme Court
• Parties: RUPPE and another v. PETERSON.

35 N.W. 82

67 Mich. 437

RUPPE and another v. PETERSON.

Supreme Court of Michigan

November 3, 1887

Error to circuit court, Houghton county; WILLIAM D. WILLIAMS Judge.

T.L Chadbourne, for defendant and appellant.

Stone &amp Gray, for appellees.

SHERWOOD J.

John Peterson, the husband of the defendant, died on the twenty-second day of November, 1886. During his life-time he was engaged in selling goods, consisting of groceries and family supplies, at Portage Entry, in the county of Houghton. The plaintiffs are general dealers in the same kind of goods and have done business in the village of Hancock during the past 16 years, and John Peterson had been accustomed to purchase goods, to retail at his country store, of the plaintiffs' firm for 10 years previous to his death. And at the time of his death he owed the plaintiffs a balance of account of $934.71. After the death of her husband, Mrs. Peterson continued the retail trade at the store in Portage Entry down to the time this suit was brought, which was on the thirty-first day of January, 1887, and during this period the defendant purchased goods of the plaintiffs' firm for her trade to the amount of $456.10. At the date last named the plaintiffs brought their suit in assumpsit against the defendant for the two sums above stated, in the Houghton circuit, where the defendant made, before the trial, a written offer of judgment for the balance she was owing the plaintiffs for goods purchased by her since her husband's death, viz., $456.10. This was not accepted, and the trial resulted in a judgment for the plaintiff for both items in their claim, amounting to the sum of $1,410.58. The defendant brings error.

At the close of the trial the defendant's counsel requested the court to charge the jury that "the plaintiffs are only entitled to a verdict for the price of the goods sold and delivered to her after the husband's death." This the court refused, and counsel for defendant excepted. At the request of counsel for the plaintiffs, the court submitted the following special requests for answers by the jury: (1) Did John Peterson, the husband of the defendant, owe plaintiffs a balance of $934.71, November 26, 1886? (2) Did the defendant on the twentieth day of November, 1886, promise plaintiffs to pay said indebtedness of her husband if they would thereafter furnish her goods on credit? (3) Did plaintiffs thereafter furnish goods to defendant upon credit, in consideration of such promise? These requests were each answered in the affirmative by the jury.

The court charged the jury that if they found the defendant promised to pay for the goods bought by her husband, and for which he was owing when he died, if the plaintiffs would extend to her a line of credit, and such credit was afterwards given, "according to the agreement," then the defendant was liable for such indebtedness of her husband. This charge, and the refusal by the court to give the defendant's request, raise the only question in the case, the defendant's counsel claiming that, under our statute, the defendant's promise relied upon by the plaintiffs should have been in writing to be of any validity. Some goods ordered by the husband had not been delivered when he died.

The following is the substance of all the testimony upon which the plaintiffs claim a promise on the part of Mrs. Peterson to pay her husband's indebtedness to them at the time he died, and upon which the judgment for that item was given. The testimony was that given by one of the plaintiffs, George Ruppe, and is as follows: "I did not see Mrs. Peterson until the day of her husband's funeral. I saw her that day with reference to business matters. She was here in Hancock that day, and I was taking her from my house on board the tug-boat. She wanted to know if I would not send down those goods her husband ordered that were not sent, and that she would pay all the accounts that Mr. Peterson owed, and she wanted to keep on continuing the business. I told her she was going on with the business, and I would assist all that I could, and would send the hams that day. Question. What, if anything, was said with reference to the old account? Answer. She said that she would pay her husband's account, if she was given more credit, so as to go on with the business; and she wanted me to give all the goods that was ordered, and not delivered yet. I told her I would. She said she would pay her husband's account, and would pay her own. She continued the trade upon credit, and run the bill mentioned here as having been offered. On the same day I gave her these hams. They amounted to $228. She felt bad, and said she would come up in a week or ten days. The goods went with her on the boat the same day, amounting to nearly $300. She continued to trade the balance of November, December, and January. *** About a week or ten days afterwards she came up again. She ordered further goods on that day. She stated to me she had gone on with the business. We took no steps to have an administrator appointed. Q. Are these all the promises you rely upon in this case? A. Yes, sir. There was another, which Mr. Stone thought was not material. This conversation that I have spoken of about business with Mrs. Peterson, wherein I claim she promised to pay her husband's debt, was had when she was passing out of my house, to get into the sleigh. Q. By the Court. What entry did you make upon your books, if any, at the time you had this talk with this woman? A. I did not make any entry at that time, except when the goods were delivered. Q. I am speaking of the debt of the husband; did you make any entry? A. No, sir. Q. I want to know if you charged it to anybody else at that time; you say not,--you did not charge them to anybody else? A. No, sir." Evidence was offered by the defendant tending to disprove the alleged promise of the defendant to pay the indebtedness of her husband to the plaintiffs.

It will be noticed that the jury found the promise of the defendant to be that she "would pay the indebtedness of...