Thompson v. Richards

• Decision Date: 17 April 1866
• Citation: 14 Mich. 172
• Court: Michigan Supreme Court
• Parties: Charles B. Thompson and another v. Daniel Richards

14 Mich. 172

Charles B. Thompson and another v. Daniel Richards

Supreme Court of Michigan

April 17, 1866

Heard April 5, 1866 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Livingston circuit.

This was an action of trespass on the case, based upon a special agreement.

Upon the trial of the issue in the court below, the counsel for the plaintiff gave in evidence the agreement sued on; such agreement being the whole claim of the plaintiff, and which was in the words and figures following, to wit.

"Pinckney, Dec. 1st, 1862.

"We, the undersigned, do agree to pay all the indebtedness of the firm of Thompson & Richards, when D. Richards signs off all his rights and title in all property and all profits that have been made in said business, lands, etc., and for the same we have paid him twelve hundred dollars in notes of the said business in full.

"C. B. Thompson.

"Wm. E. Thompson."

Thereupon the plaintiff Richards was sworn as a witness, and testified in part as follows: "I am the plaintiff; I lived in Pinckney previous to, and on the 1st December, 1862, and up to that date was a partner with the defendant, Wm. E. Thompson, in a manufacturing business making fanning-mills, washing machines, wheelbarrows, well curbs, and other wooden ware. On the 1st day of December, 1862, we, as a firm, were indebted to other persons. The firm name was Richards & Thompson. On that day the above agreement was executed, and I went out of the concern and delivered over to them all the property of the firm. I also executed to them a deed of the real estate the firm owned in Pinckney. The firm also owned lands in Iowa and Indiana." The plaintiff, by his counsel, here offered to show that he executed and delivered to the defendants a deed of the lands in Iowa and Indiana, which they accepted.

Objected to by the defendants' counsel. Objection overruled, and exception taken.

Witness testified: "I executed and delivered to the defendants a deed of the company's land in Iowa and Indiana, which they accepted." To the receiving of which testimony the defendants' counsel objected, because it was incompetent for the plaintiff to show the performance of the condition precedent in his agreement in that manner. The court received the testimony, and the defendants' counsel excepted.

The witness further testified, "that the deeds aforesaid were all the papers in writing that he signed or executed, in the performance of the condition to be performed on his part, in the agreement sued on in this cause, but that such condition was further performed by the actual delivery of the property of the late firm to the defendants."

Witness further testified, " that on the day of the acknowledgment of the execution of the aforesaid deed of the Pinckney land, and the delivery to defendant of the property of the late firm, he asked the defendant Charles B. Thompson, for a writing to show that he had fulfilled on his part; that said Thompson told him it was of no use, there was nothing more for him (witness) to do."

Mrs. Ellen Richards testified for the plaintiff as follows: "I am wife of the plaintiff; was present when the deed was signed, and plaintiff asked if he ought not to have some paper to show that he had fulfilled on his part. Defendant Charles B. Thompson said, 'No, you have done all you agreed to do,' there was nothing more for him to do, or to sign."

This was all the evidence given, showing any acceptance or satisfaction on the part of the defendants, with the performance of the condition precedent, in the agreement of the 1st of December, 1862.

The said plaintiff testified on cross-examination, "that the personal property delivered up to the defendants was in value over five thousand dollars, and consisted in fanning-mills, washing machines, wheelbarrows, sieving, lumber, tools, peddler's rack, books of account and notes--promissory notes due to the firm of Richards & Thompson, amounting to five thousand dollars."

After some further testimony from the witness as to the custody of the books, papers and notes of the late firm, for a few weeks previous to the 1st day of December, 1862, on objection by plaintiff's counsel, the court intimated a doubt as to the relevancy of the examination, under the pleadings, whereupon the defendants, by their counsel, proposed to show:

First. By the further cross-examination of this witness, that he, witness, was mistaken when he said that he delivered all the promissory notes belonging to the late firm of Thompson & Richards to the defendants, that in fact he kept and used sixty-nine of them.

Second. Under the pleadings, that the plaintiff, at the time of the agreement of first of December, 1862, had in his actual possession a large amount of the notes of the firm, and other property, which he had fraudulently secreted and refused to deliver, and which notes and property were embraced in and covered by the agreement sued upon in this case.

Third. They insisted that they had a right on the cross-examination and by other testimony, to show the same state of facts.

To which proposals and claim to further examine this witness and to introduce other testimony showing such facts, the plaintiff's counsel objected. The court sustained such objections for the reason that such evidence was not competent under the defendants' plea of the general issue alone. Defendants' counsel excepted.

The plaintiff's counsel then gave in evidence the records, files and journal entries of the circuit court for the county of Livingston, in the case of one Samuel Grimes v. Daniel Richards, the plaintiff in this case, and Wm. E. Thompson, one of defendants, jointly impleaded as copartners, in which judgment was rendered by the said circuit court on the third day of August, 1864, for the sum of $ 760.20 in favor of the said Samuel Grimes, and against the defendants, Daniel Richards and Wm. E. Thompson, by default, for want of appearance and plea.

Defendants' counsel, on behalf of the said C. B. Thompson, objected; objection was overruled by the court, and the judgment received as against both of the defendants. Exceptions were taken.

The plaintiff then further gave in evidence the notes and other matters by which such judgment was made up, consisting of three notes of the late firm of Richards & Thompson, given to one Eri Coleman, and by him transferred to said Samuel Grimes, and also an open book account of the said Grimes against said Richards & Thompson, from which it appeared that the judgment taken by said Grimes did not allow items of credit to the amount of $ 57, and that if said judgment had been defended such judgment of $ 767.20 would have been reduced by the amount of the said $ 57. It was further given in evidence that said Grimes, previous to the bringing of suit, had demanded of the defendant Charles B. Thompson, the payment of the three notes and the open account, and that said Thompson had declined to pay such indebtedness, alleging as an excuse that he had not received certain promissory notes, the property of the firm of Richards & Thompson, covered by the agreement of the first of December, 1862, which were yet in the possession of the plaintiff in this case.

Samuel Grimes testified for plaintiff as follows: "I know the parties. I presented the account sued on to Wm. E. Thompson for payment, and he told me to wait till Charles B. came up, and they would fix it. I afterwards presented it to Charles B. at Ann Arbor, and he said they were to pay it."

And thereupon defendants' counsel called the defendant Wm. E. Thompson, who testified as a witness for the defendants, and the following questions were proposed by the defendants' counsel to such witness:

First. At the time the agreement of the 1st of December, 1862, was executed, was there any statement made by the plaintiff that he had then delivered all the notes of the then firm of Richards & Thompson to the defendants, and if you shall answer "yes" to such question, was such statement the consideration or inducement that caused the defendants to execute and deliver the agreement sued on in this case?

Second. Was there any property or notes in the actual possession of the plaintiff, covered by the agreement sued on in this case, not delivered to defendants, or either of them, and which plaintiff expressly refused to deliver?

Third. Do you, or do you not, know of any assets of the late firm of Richards & Thompson, covered by the agreement sued on in this case, which the plaintiff has converted to his own use, to a large amount, both before and after the agreement of the 1st of December, 1862?

The defendants also offered to show, by this witness, under the pleadings, that the plaintiff at the time of the agreement sued upon had in his actual possession a large amount of the notes and assets of the late firm of Richards & Thompson, and other property, which he fraudulently secreted, and refused to deliver, which notes and property were embraced in, and covered by, the agreement sued on in this case.

To which first, second and third questions and proposals the plaintiff's counsel objected, on the ground that the same were incompetent under the pleadings. Which objection was sustained by the court, and the questions and proposed evidence excluded, and exceptions taken.

The circuit judge charged the jury, upon the question of damages, "that if they found for the plaintiff, they should find the amount of the judgment of said Samuel Grimes, with interest from the 3d day of August, 1864, that being the day on which said judgment was rendered."

That before they could find for the plaintiff they must find "th...