Wetmore v. McDougall
| Decision Date | 18 June 1875 |
| Court | Michigan Supreme Court |
| Parties | William L. Wetmore and another v. John McDougall |
Heard June 10, 1875
Error to Marquette Circuit.
Judgment of the court reversed, with costs, and a new trial granted.
Ball & Black, for plaintiffs in error.
Adams & Sutherland and W. P. Healy, for defendant in error.
McDougall sued plaintiffs in error, declaring specially, and also upon the common counts. In the special count he alleged that he had entered into an agreement with them by which they were to sell, assign and transfer to him a certain chattel mortgage they then held, and all interest in the property therein described, in consideration of his agreeing to pay them the amount due upon the mortgage, and not exceeding seven hundred dollars; that he paid six hundred and thirty-seven dollars and seventeen cents, and within a reasonable time thereafter offered to pay the balance, and requested a transfer of the mortgage, which was refused, whereby defendants became and were indebted to the plaintiff in the amount secured by the chattel mortgage,
It appeared upon the trial that Peterson, the mortgagor, had with the consent of McDougall, sold a portion of the mortgaged property, after this agreement was made with the defendants, and that McDougall also had sold some of the property, and paid a part of the proceeds thereof to the defendants, and which was included in the six hundred and thirty-seven dollars and seventeen cents, which he says he paid them. So that at the time this action was commenced but a small portion of the property remained undisposed of. There was no evidence given tending to show the value of the property described in the mortgage at the time of the alleged agreement with the defendants, or of the property undisposed of at the time of the trial, or when the suit was commenced.
During the entire trial of the cause, the plaintiff's counsel proceeded upon the theory of recovering upon the special count. And it was not until after the evidence was all in that he abandoned this view, and sought to recover upon the common counts. The jury found in favor of the plaintiff, for the full amount paid by him, with interest thereon.
The court charged the jury, that the plaintiff could not recover upon the special count, but under the charge permitted him to recover upon the common counts. We think the plaintiff was not entitled to abandon the...
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