Thompson v. Howard
| Decision Date | 26 February 1875 |
| Court | Michigan Supreme Court |
| Parties | Malachi Thompson v. Ebenezer B. Howard |
Heard January 15, 1875
Error to Kalamazoo Circuit.
Judgment affirmed, with costs.
J. L Hawes, for plaintiff in error.
Arthur Brown, Dwight May and Hoyt Post, for defendant in error.
The plaintiff sued the defendant in case to recover of him for having, as he alleged, enticed into his service and harbored his minor son, a young man about nineteen years of age. The evidence went to show that the parties having been near neighbors in Cooper, Kalamazoo county, the defendant removed to Missouri, and, without plaintiff's knowledge or assent, and against his wishes and desire, persuaded and induced the young man to leave his father, the plaintiff, and go to defendant's place in Missouri, and there work for the latter on his promise of wages; that the defendant, besides holding out inducements to the young man to go and enter his service, furnished money to pay his fare, and that in consequence he went to Missouri about the 23d of May, 1870, and worked for defendant and remained there until April, 1871, when an elder brother who was sent after him by plaintiff, induced him to return.
The main defense to the action consisted of evidence, admitted under objection, that shortly before this action was brought the plaintiff sued the defendant in assumpsit before a justice, to recover on the basis of contract for the minor's services; that the cause was brought to trial before a jury, and a hearing had upon the merits; that the case was submitted but subsequently discontinued after a disagreement of the jury.
This course of the plaintiff, the defendant claimed, constituted a decisive election by the former to treat the transaction as one of contract and not tort, and he insisted the proceedings effectually put an end to any right the plaintiff may have had before, or might otherwise have had, to count upon the procurement of the young man to leave his father and serve defendant, as a tortious act.
In regard to this part of the case, the court told the jury in substance, that it was competent for the plaintiff to ignore the ground of tort involved in the defendant's arrangement with the minor, and to treat the transaction as one of contract between the plaintiff and defendant, to be enforced agreeably to its nature; and that if the jury were satisfied that the plaintiff, with full knowledge of all the facts going to show the defendant committed a tort, had yet elected to place his right on the basis of contract, and had prosecuted a suit on that theory and foundation down to the submission of the case to a jury, he could not afterwards turn round, repudiate such election, and maintain a suit in tort; but that if the plaintiff prosecuted his first suit in question in ignorance, or under misapprehension of the...
To continue reading
Request your trial
-
Boeing Airplane Co. v. Aeronautical Industrial Dist.
...and electing again.' Kearney Mill. & Elevator Co. v. Union P. R. Co., (1896), 97 Iowa 719, 66 N.W. 1059, 59 Am.St.Rep. 434; Thompson v. Howard, (1875), 31 Mich. 309. `If the facts exist which justify a rescission by one party, and he exercises his right and declares a rescission in some eff......
-
Roney v. H. S. Halvorsen Company
...knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again. Thompson v. Howard, 31 Mich. 309; McNutt Hilkins, 80 Hun 235, 29 N.Y.S. 1047, 1049; Welsh v. Carder, 95 Mo.App. 41, 68 S.W. 580. So, too, the counterclaim was unava......
-
The Johnson-Brinkman Commission Company v. The Missouri Pacific Railway Company
... ... ""Crossman v. Rubber Co., 127 N.Y. 34; ... ""Crook v. Bank, 52 N.W. 1131; ... ""O'Donald v. Constant, 82 Ind. 212; ... ""Connihan v. Thompson, 111 Mass. 270; ... ""Lehman, Durr & Co. v. Van Winkle & Co., 92 Ala ... 443; ""Terry v. Munger, 121 N.Y. 161; ... ""Conrow v. Little, 115 N.Y ... 450; ... ""Foundry Co. v. Hersee, 103 N.Y. 25; ... ""Moller v. Luska, 87 N.Y. 166; ""Nield ... v. Burton, 49 Mich. 53; ""Thompson v. Howard, 31 ... Mich. 304; ""Arnold v. Hagerman, 45 N.J.Eq. 186; ... ""Carter v. Smith, 23 Wis. 497; ""Wheeler ... v. Dunn, 13 Col. 428; ""McLean v ... ...
-
Strader v. Haley
...613. The note in 5 Am.St. Rep. at page 619, quotes Wharton on Agency and Agents as using the word with the same meaning. In Thompson v. Howard, 31 Mich. 309, 312, an election of inconsistent remedies was held to "preclude" the party from making another election. In Lull & Skinner Co. v. Kem......