Tefft v. McNoah

• Decision Date: 19 April 1861
• Citation: 9 Mich. 201
• Court: Michigan Supreme Court
• Parties: William H. Tefft v. Peter McNoah

9 Mich. 201

William H. Tefft v. Peter McNoah

Supreme Court of Michigan

April 19, 1861

Heard April 10, 1861 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit, where McNoah sued Tefft, for the use and benefit of Edward Shepard, on the following instrument:

"Memorandum of agreement made this twenty-eighth day of February eighteen hundred and fifty-nine, between William H. Tefft, of the first part, and Peter M. McNoah, of the second part, both of the city of Detroit, state of Michigan, witnesseth:

"Whereas, the above parties have, since the second day of July, 1855, been associated as partners in the hardware, tin, stove and manufacturing business, as per articles of copartnership bearing date as above, to which copartnership said McNoah contributed the sum of three thousand dollars as capital (received from Edward Shepard), and the balance was contributed by said Tefft; and, whereas, up to the date of this instrument said McNoah has drawn from the concern all his profits and thirteen hundred dollars of the capital invested by him, leaving seventeen hundred dollars to be paid from said capital of Edward Shepard by said Tefft, on the second day of July, 1860, from said McNoah's capital put into the business at the date of the above copartnership.

"It is now agreed, between the parties above, tat said Tefft may continue the business on his own account, and that said McNoah will work for him, in conducting the shop and manufacturing as heretofore, until the 2d day of July, 1860, at the rate of five dollars per day; two and one-half dollars to be paid him per day by said Tefft, as he may require, and two and one-half dollars per day to be paid to Edward Shepard with the amount left with Tefft, viz.: seventeen hundred dollars on the second day of July, 1860. And it is further agreed by said Tefft, that if said McNoah works for him until the second day of July, 1860, he will pay to said Edward Shepard the sum of three thousand dollars, being the amount loaned by said Shepard to said McNoah on the second day of July, 1855, and release the said McNoah from the said thirteen hundred dollars' indebtedness which he has overdrawn at this date; or in case the said McNoah can make other arrangements to pay his indebtedness to said Shepard, and wishes to leave the employ of said Tefft to engage in other business, it is hereby agreed he may do so; said Tefft paying him at the rate and manner first mentioned in this instrument."

The plaintiff averred that, in pursuance of the terms and conditions of this agreement, he entered into the employment of the defendant, and continued therein until the said second day of July, 1860, and while so in the employment of defendant, he fully and in good faith performed on his part all the terms and conditions of said memorandum of agreement. And further, that the defendant has never paid, nor has any one on his behalf ever paid, to the said Edward Shepard or to the plaintiff, the said sum of three thousand dollars or any part thereof. By reason of which premises an action had accrued to the plaintiff, to demand and have of defendant the sum of three thousand dollars and interest thereon, as mentioned in said memorandum of agreement.

Besides the special count on this agreement, the common counts were also added, to which defendant pleaded the general issue, and demurred to the special count.

The court overruled the demurrer, and the defendant then filed the following paper:

"And now comes the said defendant, by Walker & Russell, his attorneys, and excepts to the order heretofore entered in this cause overruling his said demurrer to said special count, and prays leave to plead issuably thereto, without terms."

The court denied this prayer, but ordered that defendant have leave to plead issuably to said count instanter, upon the terms of going to trial at the then present term, when the cause was reached on the docket.

The defendant filed his exceptions to the denial of his prayer for leave to plead, and then pleaded the general issue to the special count, and the parties proceeded to trial.

William A. Moore, a witness for plaintiff, testified that he called upon the defendant about the middle of July, 1860, in reference to the said claim; that at one time witness had the agreement sued upon with him, and showed it to the defendant that defendant offered to pay said claim in a small account, and money,...