Toledo & A.A.R. Co. v. Johnson
| Citation | 21 N.W. 888,55 Mich. 456 |
| Parties | TOLEDO & A.A.R. CO. v. JOHNSON. |
| Decision Date | 07 January 1885 |
| Court | Supreme Court of Michigan |
Error to Monroe.
Ira R. Grosvenor, for plaintiff.
C.A Stacy and O.A. Critchett, for defendant and appellant.
This suit was commenced on the twenty-fourth day of February 1879. It was brought to recover as damages the amount agreed to be paid by the terms of the following agreement:
The declaration avers that plaintiff has become, by assignment, transfer, and delivery previous to the commencement of suit, the sole owner of the said contract, and all rights and benefits growing out of the same; avers that all the conditions in said contract have been fulfilled on the part of the said road and its assigns, and that the cars did run over said road six months previous to the commencement of this suit. The defendant pleaded the general issue, and gave notice of the statute of limitations; also, that the contract declared on was obtained by fraudulent representations of the agent of the Toledo, Ann Arbor & Northern Railroad Company, and also that the Toledo, Ann Arbor & Northern Railroad Company was not, on the fourth day of October, 1871, a corporation under the laws of this state, and has never been at any time since. The case was once before in this court, and is reported in 49 Mich. 148; S.C. 13 N.W. 492.
The corporation named in the contract commenced to build the road, but before completion it was declared bankrupt in the district court of the United States for the Eastern district of Michigan, in proceedings instituted for that purpose, and E.D. Kinne was appointed its assignee. To prove title of the contract declared on, plaintiff offered in evidence a certified copy of a deed from the assignee in bankruptcy to Benjamin P. Crane. This was objected to, for the reason that the record of a deed is not made by law evidence of the sale or conveyance of personal property, and because the said deed does not describe the contract in question, or purport to convey it. Plaintiff then offered testimony tending to show that such a deed had been executed, but had been lost, and showed by the deputy register of deeds that he recorded said deed and compared it with the record, and that the record was a true copy of said deed; and thereupon the court overruled the objection, and admitted the certified copy of the deed in evidence. The plaintiff then offered a similar record of a similar conveyance from Crane to James M. Ashley, which was admitted against defendant's objection.
This ruling of the circuit judge constitutes the defendant's first and second exceptions. The testimony was admissible. It was material for the plaintiff to show that it had succeeded to the rights and franchises of the Toledo, Ann Arbor & Northern Railroad Company, and had furnished the consideration upon which defendant's promise was based, and the deeds were competent for this purpose. Although the certified copies of the deeds would not be competent evidence that the contract in question was conveyed by them, yet they were competent and admissible evidence to show that the plaintiff was a proper person to perform the contract on the part of the promisee, as having succeeded to its franchises, rights, and interests, and who might in legal contemplation be said to be a proper party to perform it. The franchises and other property of the Toledo, Ann Arbor & Northern Railroad Company were sold under a decree of the court of bankruptcy to Benjamin P. Crane, and a conveyance was made by the assignee to him on the sixth day of October, 1875. Crane made no attempt to organize a railroad corporation, but on the ninth day of June, 1877, sold and conveyed all the property, assets, and franchises so purchased by him to James M. Ashley, of Toledo, Ohio, who on the twenty-third day of November, 1877, filed with the secretary of state a declaration of incorporation, and plaintiff claims that this declaration was filed in pursuance of, and was authorized by, section 2 of act No. 198 of the Session Laws of 1873.
The plaintiff also gave evidence tending to prove that the contract in question was assigned and delivered to Kinne under the proceedings in bankruptcy; that Kinne sold and delivered it to Benjamin P. Crane; that Crane sold and delivered it to James Ashley; and that Ashley sold and delivered it to plaintiff. This testimony was independent of the several deeds before mentioned, and was sufficient to create an equitable assignment of the contract, and to authorize the plaintiff, as equitable assignee, to maintain a suit upon it in its own name. How.St. � 7344; Cook v. Bell, 18 Mich. 387; Draper v. Fletcher, 26 Mich. 154. Plaintiff also showed that at the time this suit was commenced it was a corporation doing business in this state.
The plaintiff then gave evidence tending to show demand by the plaintiff upon the defendant for the sum claimed by the plaintiff upon said contract, after the road had been in operation six months from Ann Arbor to the state line and city of Toledo, in Ohio, and that the payee named in said contract expended about 20 per cent. of its capital stock in grading and preparing the line of the road and in the purchase of ties before it was declared bankrupt, and that the road, as finally built from the state line to Ann Arbor was constructed by plaintiff upon the identical line as originally surveyed and located by the Toledo, Ann Arbor & Northern...
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Toledo & A.A.R. Co. v. Johnson
...55 Mich. 45621 N.W. 888TOLEDO & A.A.R. CO.v.JOHNSON.Supreme Court of Michigan.Filed January 7, Error to Monroe. [21 N.W. 888] Ira R. Grosvenor, for plaintiff.C.A. Stacy and O.A. Critchett, for defendant and appellant.CHAMPLIN, J. This suit was commenced on the twenty-fourth day of February,......