Totten v. Burhans

• Decision Date: 07 December 1894
• Citation: 103 Mich. 6,61 N.W. 58
• Court: Michigan Supreme Court
• Parties: TOTTEN v. BURHANS.

61 N.W. 58

103 Mich. 6

TOTTEN v. BURHANS.

Supreme Court of Michigan

December 7, 1894

Error to circuit court, Shiawassee county; William Newton, Judge.

Action by Frank M. Totten against Daniel Burhans for fraudulent representations, in the sale of his interest in a partnership, as to the collectibility of certain firms accounts assigned to plaintiff. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Watson & Chapman, for appellant.

S. F Smith (G. R. Lyon, of counsel), for appellee.

McGRATH C.J.

For a statement of the facts herein, reference is made to 91 Mich 495, 51 N.W. 1119. Twelve of the sixteen assignments of error relate to the admission of testimony, two to remarks of counsel made during the trial, one to instructions given by the court to the jury, and one to the refusal to direct a verdict for defendant.

1. The first assignment alleges error in permitting an answer to a given question, but from the record it does not appear that the question was answered.

2. Plaintiff was asked what was said, if anything, about Chase's partnership, and what was the extent of it. The conversation referred to was that in which the representations complained of were made. Plaintiff was a purchaser of defendant's interest in the business. It was entirely competent to show that Chase's interest was a merely nominal interest.

3. On redirect examination, plaintiff was asked the following questions: "Did you employ Burhans' son as bookkeeper? Where was the business transacted,-in what building? Where did he (Burhans) keep his office? What knowledge did Burhans have, relative to the collection of these claims? State whether Burhans talked with you about these claims, and the collection of them, and what parties were owing them during this time. When you went out to make collections, state how were you informed of the business,-that is, of the accounts to be collected; where did you go for the information as to what you were to do?" On cross-examination of plaintiff, the following questions were asked: "Q. What security did Burhans take, if any from you and Chase, that you would pay this $6,200 and some odd dollars you had assumed to pay? A. He didn't take any security, so far as I know. Q. Burhans turned these accounts over to you, and didn't have a scratch of the pen that you would carry out your agreement with him, did he? A. No, sir; I don't think there was any written contract." Plaintiff had already testified in his direct examination that certain of the accounts assigned to him had been collected by one Long, one of defendant's agents, before the transfer. On cross-examination he was asked as to his personal knowledge of that fact. He was further asked as to the diligence used in making collections, and as to his information as to the responsibility of certain of the parties indebted upon the assigned accounts. As bearing upon the question of defendant's security, plaintiff stated that it was one of the conditions of the sale that defendant's son should be employed as bookkeeper; that he was so employed, and plaintiff was in a situation to be advised of the collection of accounts, and the appropriation of the proceeds to the liquidation of the assumed indebtedness. Plaintiff sought further to show that he obtained his information as to the collections made by Long partly through defendant, and, as bearing upon the means used to make collections, and the diligence exercised, he acted upon information given and suggestions made by defendant, who was in a situation to advise, and who knew what was being done in that direction.

4. Error is assigned upon the remarks of counsel made during the discussion of the questions relating to the admissibility of certain testimony offered by plaintiff. We find nothing in the statements made which was calculated to prejudice the defendant.

5. The eighth assignment cannot be considered. Objection was made, after answer given, to going into the inquiry. The inquiry on that line ceased, and no motion was made to strike out.

6. A motion was made, after the cross-examination, to strike out all the testimony of a witness "in regard to these...