Wilson v. Wagar

• Decision Date: 19 April 1873
• Citation: 26 Mich. 452
• Court: Michigan Supreme Court
• Parties: Hilton Wilson and others v. Henry Wagar

26 Mich. 452

Hilton Wilson and others v. Henry Wagar

Supreme Court of Michigan

April 19, 1873

Heard January 8, 1873.

Error to Kalamazoo circuit.

Judgment affirmed, with costs.

William Fletcher, for plaintiffs in error.

Severens Potter & Boudeman, for defendant in error.

OPINION

Christiancy, Ch. J.

Plaintiffs in error sued defendant in error in an action of assumpsit, declaring upon the common counts only, and furnished the following bill of particulars of their demand:

"June 1st, 1870.

One steam engine boiler, sold

and delivered by plaintiffs to

defendant

$ 1,100 00

" " "

One steam boiler front, sold

and delivered by plaintiffs to

defendant

100 00

" " "

One balance or fly-wheel to

steam engine, sold and delivered

as aforesaid

100 00"

The defendant pleaded the general issue, and gave notice of set-off, and also gave notice, in substance, that he would show on the trial, that said articles were sold and delivered to him under, and in part performance of, a special contract in writing, made between the parties on the 18th day of December, 1869, by which the plaintiffs agreed to make for, and sell to defendant, and the defendant agreed to purchase, one steam engine and its appurtenances (including the articles mentioned in plaintiffs' bill of particulars), at the price of two thousand dollars; payable, seven hundred dollars at the execution of the contract (which was paid accordingly); three hundred dollars when the engine should be ready for delivery; five hundred dollars in lumber (at twelve dollars per thousand), within three months after taking the engine away; and five hundred dollars in cash, eight months from the date of said agreement; said engine and its appurtenances (including said articles) to be delivered by or before the 1st day of March, 1870, and the boiler on or before the 15th of February, 1870; in consideration of which, defendant thereby undertook and promised to pay as aforesaid; that, though the time for the completion of the contract had elapsed, the plaintiffs had neglected and refused so to make and deliver, etc., by which defendant had suffered large damages, etc.; and that he would recoup such damages in this action, etc. (in the usual form of notice of recoupment). The defendant, after all the plaintiffs' evidence was in, and they had rested, was allowed to amend by striking out, or withdrawing this claim and notice of recoupment; the plaintiffs objecting to such withdrawal on the ground, as they claimed, that defendant, by reason of this notice, had been allowed to draw out on cross-examination, evidence which could only be admissible under the notice, and not under the general issue alone; and the plaintiffs moved to strike out the evidence which they claimed to be of this character.

We shall therefore consider the case in all respects as if no notice of recoupment had ever been given; remarking here for the present, that the general issue, without any notice in an action of assumpsit, as a general rule, denies and puts in issue every fact, and every combination of facts, necessary to constitute the plaintiffs' cause of action; in other words, it denies the existence of any such state of facts, as could constitute or establish the promise declared upon, or which would entitle the plaintiffs to recover upon the cause of action alleged.

The plaintiffs opened their evidence by introducing one of their own number as a witness, who testified that plaintiffs were engaged in the business of manufacturing engines and boilers; that they had had dealings with defendant; that on the first day of May, 1870, they let him have a boiler and a fly-wheel to a twelve-inch engine, the boiler worth one thousand and thirty-five dollars, and the fly-wheel, one hundred and eleven dollars; that some time in August following, they let him have a boiler front, worth sixty-four dollars, and that defendant came and got these articles from them, and had not paid for them. Witness was then on cross-examination asked, if the plaintiffs had a contract with the defendant for furnishing these articles. This was objected to by the plaintiffs, as immaterial, and not proper cross-examination; but the objection being overruled, and exception taken, witness answered: "We had a contract with defendant for furnishing these articles; it was in writing." And being shown the written contract, and recognizing it as the one referred to, under objection of the plaintiffs' counsel, it was read. This was the contract the substance of which has already been stated as described in defendant's notice of recoupment, with which it corresponded. The admission of this evidence upon cross-examination, is one of the errors assigned, and is among those chiefly relied upon.

We are aware of no sound or recognized theory of the action, of pleading, or of evidence, upon which this objection can be maintained. By the common law, until a very recent period, no principle was better settled, than that when there was an express contract, none could be implied; and whenever in an action based upon an implied contract, it appeared upon cross-examination of the plaintiff's witnesses (which for this purpose was always admissible), and the fact was not disputed, that the work (for instance) was done, or the goods furnished, under an express contract, differing in any respect from what the law would have implied, and which was still in force, there was an end of the plaintiff's action; unless he could show that he had fully performed the contract, so as to create a duty on the part of the defendant, to pay the money compensation agreed upon, which duty is treated as an implied promise or contract; and upon the proof of such performance he might recover the contract price upon a count for work and labor done, or goods sold, but not upon a quantum meruit or quantum valebat.

And now that the courts, in some cases of part performance of an entire and express contract, have recognized an implied and independent contract, as arising from the benefit which the defendant has received from the acceptance and appropriation of a part of the labor or property contracted for, as will be more fully explained in its proper place, the cross-examination as to the existence and terms of the special contract, and the whole transaction connected with the performance of the work or the furnishing of the property, as in the present case, is equally pertinent.

The establishment of such a state of facts as would constitute an implied contract to pay for the articles in question, was incumbent upon the plaintiffs, and constituted the plaintiffs' case. The testimony this witness had just given on his direct examination, tended to show a sale of the articles without any specified or agreed price, and hence, to establish a duty on the part of the defendant, and therefore an implied promise or contract to pay, whatever the articles were reasonably worth, and to pay this at any moment, upon request. The defendant had the right on cross-examination, not only to call out any fact which would contradict or qualify any particular facts stated on the examination in chief, but anything which would tend to rebut or modify any conclusion or inference resulting from the facts so stated, and therefore to show that the whole transaction connected with the furnishing of these articles, did not constitute such contract as that which the direct evidence of this witness tended to prove; but he could not do this, nor could it be known whether any or what contract would result, and the cross-examination would be a mere farce, if he could not be allowed to show by it just what the whole transaction was, so far as it might be within the knowledge of the witness: See, Chandler v. Allison, 10 Mich. 460; Thompson v. Richards, 14 Mich. 172; D. & M. R. R. Co. v. Van Steinburg, 17 Mich. 99; Turner v. City of Grand Rapids, 20 Mich. 390.

It is hardly necessary to add, that upon these principles, all parts of the cross-examination in this case were clearly admissible under the general issue alone, though some of the facts elicited might not be as advantageous to the defendant as if the notice of recoupment had remained.

While upon the subject of cross-examination, it may be proper to state (though there is nothing in the form of the present bill to call for it), that, judging from the form in which bills of exceptions are quite frequently presented, we infer that an erroneous notion still prevails with some members of the profession, as to the question on whose part the evidence given on cross-examination, is to be considered as introduced. Thus, it is not unusual to find in bills of exceptions, a statement of the evidence drawn out on the cross-examination, as evidence introduced by the party making the cross-examination, "tending to prove" his case. This statement is always incorrect, when used with reference to a legitimate cross-examination. All testimony elicited on such cross-examination, consisting, as it does, of facts which, though relating to the direct examination, may have been omitted or concealed in that examination, or facts tending to contradict, explain or modify such facts, or to rebut or modify some inference which might otherwise be drawn from them, must in the nature of things, constitute a part of the evidence given in chief; and both alike and together, must, therefore, be treated as evidence given on the part of the party calling the witness. The evidence given by the witness is not that alone given in chief, but it is that given in chief, as contradicted, explained, enlarged, narrowed or modified by the cross-examination. It is simply the combined result of both. See Campau v. Dewey, 9 Mich. 381, 418.

For a proper understanding of the other questions...