Sparling v. Smeltzer

• Decision Date: 23 June 1903
• Citation: 95 N.W. 571,133 Mich. 454
• Court: Michigan Supreme Court
• Parties: SPARLING v. SMELTZER et al.

95 N.W. 571

133 Mich. 454

SPARLING v. SMELTZER et al.

Supreme Court of Michigan

June 23, 1903

Error to Circuit Court, Benzie County; Clyde C. Chittenden, Judge.

Replevin by Joseph Sparling against Abel Smeltzer and others. Judgment for plaintiff, and defendants bring error. Reversed.

The testimony of Mrs. Albertson, referred to in the opinion, is in part, as follows.

'I first visited at the Smeltzer home about three years ago. It was in the summer. I had a conversation with Mr. Smeltzer at that time in relation to his disposition of his personal property. He told me, the first conversation I had with him that certain ones of his family were after what little property he had, and that they should never have any of it as he intended that Mr. Sparling should have all of his personal property. I had other conversations with him after that in regard to the personal property. They were had at different times, but the last one was--I can't tell you exactly, but it was some time during last fall--late in the summer or fall--at his home. Q. What did he say in that conversation in regard to the personal property? A. He said that he had disposed of it--that he had given it all to Mr Sparling. There was no one present at that conversation. This was the fall before he died, in February. That was the last conversation I had with him. I couldn't tell how many times I visited there while the Sparlings lived there during the old man's life. My husband worked on the place, and he was employed and paid by Mr. Sparling. That was during the winter and summer three years ago.'

D. G. F. Warner and Pratt & Davis, for appellants.

Thomas Smurthwaite (George Whitbeck, of counsel), for appellee.

MONTGOMERY J.

This is an action of replevin for several head of live stock. The plea was the general issue, accompanied by notice that the property in question was in his lifetime the property of one William Smeltzer, now deceased, and that the defendants now hold the same as executors of the estate of said William Smeltzer, deceased. The plaintiff was a son-in-law of William Smeltzer, and in 1896 was living on a farm in Pleasanton, Manistee county, Mr. Smeltzer residing at Joyfield, in Benzie county, some two miles distant. At this time Mr. Smeltzer was upwards of 80 years of age, and plaintiff's wife and daughter were alternately doing the household work for Mr. Smeltzer. In the fall of 1896, under some arrangement, the details of which are left in more or less obscurity by the testimony because of plaintiff's incompetency as a witness, plaintiff moved with his family onto the farm of Mr. Smeltzer, taking with him an amount of stock similar to that which Mr. Smeltzer owned, and up to the time of Mr. Smeltzer's death the two--that is, plaintiff and Smeltzer--conducted the farm, the plaintiff's wife looking after the housework, with the assistance of her daughter. On the trial two theories were put forth by the plaintiff: The first is that the arrangement between himself and Mr. Smeltzer amounted to a partnership, and that as the surviving partner he had the right, independent of his claim under the alleged gift hereinafter referred to, to possess and control the personal property on the farm for the purpose of closing up the business of the copartnership. The other theory was that there was a gift of all the personal property on the farm, belonging to Mr. Smeltzer, made to plaintiff, in trust for certain purposes. The plaintiff prevailed in the court below, and the defendants bring error.

It is the contention of the defendants that there was no testimony in the case which justified submitting either of plaintiff's theories to the jury; that is to say, it is urged that there was no evidence of partnership and no evidence of a completed gift. We have examined the record with great care, and we are not prepared to say that the record is wholly devoid of evidence tending to show a partnership. It is nor enough that the testimony is to our minds quite as consistent with the theory that the parties intended no community of property; there is in the case evidence from which the jury might have inferred a purpose to make the property common property, and to treat the proceeds as the fruit of a common investment--the result of the original investment and the efforts of the two parties to the transaction. It is very true that there was much testimony in conflict with this theory. Testimony that the property was given in separately, for purposes of assessment, very...