Tuller v. Ginsburg

• Decision Date: 20 February 1894
• Citation: 99 Mich. 137,57 N.W. 1099
• Court: Michigan Supreme Court
• Parties: TULLER v. GINSBURG et al.

57 N.W. 1099

99 Mich. 137

TULLER v. GINSBURG et al.

Supreme Court of Michigan

February 20, 1894

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Assumpsit by Elizabeth Tuller against Reuben L. Ginsburg, Solomon Ginsburg, and Bernard Ginsburg. From a judgment for plaintiff, defendants appeal. Affirmed.

Sloman & Duffie, for appellants.

Henry Walbridge, (Charles Flowers, of counsel,) for appellee.

HOOKER J.

The defendants appeal from a verdict and judgment of $275 rendered in an action of assumpsit for rent of premises in Detroit. The case was commenced against Reuben L. Ginsburg Solomon Ginsburg, and Bernard Ginsburg, who were declared against as copartners doing business under the name of R. L Ginsburg & Sons. Bernard Ginsburg only was served with process. A plea of the general issue was filed in behalf of all of the defendants. Upon the trial the father of Bernard and Solomon was sworn, and testified that at the time of the lease of the premises the firm was composed of his wife, Rachel L. Ginsburg, and his two sons, Bernard and Solomon. Upon cross-examination he testified that his name was Samuel Ginsburg; that there was no such person as Reuben L. Ginsburg; that, while the directory showed that Reuben L lived at 111 Columbia street, it was the residence of the witness; that he had always carried on business as R. L. Ginsburg & Sons, and he did not know why he did not have his name put in the directory as Samuel Ginsburg; that before his sons went into partnership with him he signed everything as R. L. Ginsburg & Sons. He further stated that R. L. Ginsburg was Rachel Ginsburg, his wife. Thereupon the following colloquy ensued: "Mr. Sloman: Was there any such firm in existence as Reuben L. Ginsburg, Solomon and Bernard Ginsburg? A. No, sir; not to my knowledge. The Court: May I ask, with reference to that, whom you appeared for when you appeared for Reuben L. Ginsburg? Mr. Sloman: I appeared for all the defendants. The Court: I know, but the defendant's name is Reuben L. Ginsburg. Mr. Sloman: What does your honor wish to know? The Court: Whom you appeared for; who the party is with reference to that. Mr. Sloman: I appeared for the defendants. We appear for the defendants in the case. The Court: But there is one defendant named as Reuben L. Ginsburg. Mr. Sloman: Reuben L. Ginsburg. They sue three parties as comprising the firm of R. Ginsburg & Sons. Now, I take it that it is incumbent upon them to show a partnership such as they sue. The Court: That may be so, but I think it is incumbent upon you to know for whom you appeared when you appeared for Reuben L. Ginsburg. Mr. Sloman: I except to the statement of the court. I appeared for the defendants in this case, as I have a right to. The Court: Who are the defendants in this case? Mr. Sloman: The defendants are Reuben L. Ginsburg and Solomon and Bernard Ginsburg. The Court: There is no Reuben L. Ginsburg. Mr. Sloman: That is what the witness says." After the adjournment the following occurred: "'The Court, (addressing Mr. Flowers:) If you desire to amend your declaration by substituting the name of Samuel Ginsburg, I think I would permit you to do it. Mr. Moore: May it please your honor, Mr. Sloman was called out of the city upon a telegram on very important business, and he wished me to come here to present the requests to charge, and look after the case as well as I might with what little knowledge he could give me of it; and it seems to me that the proposition that is made here at this stage of the case, to bring a party into this case, and bring him before the jury, and have a judgment or a verdict rendered against him when there has been no process against him, and no appearance for him, I do not see how it can be done. The Court: I do not undertake to say at the present time that he is before the court, but there are two parties before the court unquestionably. You have appeared for Reuben L. Ginsburg? Mr. Moore: Yes. The Court: The evidence affirmatively shows that there is no such person as Reuben L. Ginsburg; that there is no such person in existence, so far as known to the Ginsburgs in this case, as Reuben L. Ginsburg. Now, as I said yesterday, I do not understand how you did that innocently, but you can see the effect to the other side of the case. Mr. Moore: As to the matter of innocence in the case, of course that is something I know nothing about. I except to the court's remark. The Court: The defendants put in their appearance, and you have appeared for a person in that way. You have appeared for a person who does not exist. Now, under those circumstances, with reference to the matter, I think the counsel may properly, even at this stage of the case, ask for an amendment. The Court: I do not think, in this case, that I could have Rachel L. substituted, under the testimony in the case, for Reuben L., because there is no evidence that would justify the doing of that; but, if the parties desire either to strike out the name of Reuben L. at this time, and proceed as against the two copartners, or if, on the contrary, they desire to proceed against Samuel, Bernard, and Solomon as partners under the name of R. L. Ginsburg & Sons, I think I shall permit the amendment. Mr. Moore: Then, may it please your honor, doesn't it follow that it was our duty to tell them how to allege this partnership? Now, I don't understand that it was, and we have got to suffer. It must be that we are entitled to costs so far, anyway. They have brought us into court in the wrong way. We are not to blame for that. They should have found out what the fact was. At any rate, they should prove their declaration. I submit that the first thing they must do in this case is to prove the partnership which t...