Seligman v. Ten Eyck's Estate
| Decision Date | 04 October 1882 |
| Citation | 13 N.W. 377,49 Mich. 104 |
| Parties | SELIGMAN v. TEN EYCK'S ESTATE. |
| Court | Michigan Supreme Court |
The assignees of a contract to sell and deliver logs brought suit upon it against the estate of the other party, who had died. They put in evidence a memorandum indicating, as they claimed, that evidence of the fulfillment of the contract existed on decedent's books. It had no tendency in itself to prove this, but they were also allowed to show, in connection with it, a computation by decedent's book-keeper and certain alleged conversations with him, on which they had relied as inducements in purchasing the claim. Held that this was not properly admissible as res gestae to show the good faith of the assignment, nor as bearing on the merits.
Assignees of a contract can take such rights only as belonged to the assignor. In an action on the contract, therefore, the consideration for the assignment cannot concern the defense and the introduction of testimony which would suggest superior equities in a bona fide purchaser of the claim would mislead.
A book-keeper's admissions cannot bind his employer in an action against the latter upon a contract made with plaintiff's assignor.
Where the business books of a decedent are relied on to charge his estate, it seems to be erroneous to admit, apart from its context and as independent evidence for a particular purpose a memorandum entry which could only be important when incorporated with the accounts of the decedent; and the false impression so produced cannot be supposed to be done away with by the subsequent reception of the books on the part of the defense, even though they show that the entry had never entered into the accounts or been regarded in the balances.
Where a written agreement, drawn to be executed by the party making it and signed by him only, is found among the papers of the other party after the latter's death, it is presumed to have been delivered; and its retention raises a presumption of acceptance which must be overthrown by proof before it can be avoided.
In an action involving a contract alleged to have been made with a deceased person, facts relating to its delivery to a third person before decedent received it, may be shown by the testimony of the other party, if decedent had not known them.
Where a trial judge, in excluding objectional testimony, declines to exclude what relates to a certain matter that is involved with the rest, its effect cannot be supposed to have been fully destroyed.
It is erroneous to direct the attention of the jury to undisputed facts as if they were doubtful.
Error to Saginaw.
Tarsney Tennant & Weadock, for plaintiffs.
Wheeler & McKnight, for defendant and appellant.
Plaintiffs, as assignees of Jerome P. Kroll, recovered, in the Saginaw circuit court on appeal, a claim which had been rejected by the commissioners, for an alleged balance due on the price of logs sold and delivered by Kroll to the firm of C. & E. Ten Eyck, of which deceased was the only general partner. This contract was made November 23, 1878, and provided for the sale of 2,000,000 feet of white pine logs, cut and to be cut from the N. 1/2 of section 13, the N.E. 1/4 of section 14, and from section 12, all in township 20 N., of range 1 W.; no log to be under 14 inches in diameter at the small end. For these logs payment was to be made at the sum of five dollars per thousand, three dollars payable when the logs were delivered within the Titabawassee boom limits, and the remainder November 1, 1879. The logs were to be marked TEN, and to be scaled on skids or on the bank, by a scale to be agreed on. It was claimed the logs were scaled and delivered in 1879, and that on the nineteenth day of July, 1879, there remained unpaid and due, or to become due, $3,815.27. This would, if correct, indicate advances beyond the amount agreed on, as at two dollars a thousand, which was the payment reserved until November, 1879, the postponed amount would have been $4,294.26. The jury found a verdict for the amount claimed, with interest from November 1, 1879. There was testimony going to show the delivery of the amount of logs before mentioned, but the chief controversy seems to have been whether this contract continued to be the measure of the rights of the parties, and whether other transactions had not affected either the contract itself, or the balances arising out of the mutual dealings of the parties.
It appears that Egbert Ten Eyck died in August, 1879, before all of these logs came into the control of the firm which he represented, and that he ceased giving active attention to his business in person at his office in the spring of 1879. From some time in April or May Trevet McCormick was his book-keeper, exercising more or less supervision over business matters, but having no general authority to act without directions. On the trial a part of the controversy turned on the actual date and effect of a written agreement signed by Knoll, but bearing no written date, which purported to convey...
To continue reading
Request your trial