Smith v. Van Tine

Cooley, J. Complaint is made that the circuit judge, perhaps by inadvertence, so shaped his instructions to the jury as to withdraw their attention from the principal question of fact in the case, and to lead them to suppose no such question was made. We do not agree in this criticism, but have no occasion to comment upon it. The suit was brought by Mrs. Yan Tine to recover the amount of small loans made by her to Smith and her husband John K. Yan Tine, while they were in business together as partners. Several little loans appear to have been made at different times, notes being taken therefor in the names of other parties who were supposed by Smith to be the lenders. Two of them, including a note which is counted on in this suit, were made payable to Brown, who was cashier of the First National Bank of Flint. Smith offered on the trial to show an arrangement made by him with Brown, while the latter was the apparent owner of these notes, that if Smith [492] would pay one of them he would look to Van Tine for the other, and that Smith made payment accordingly. The offer was rejected. No consideration for Brown’s promise was pretended, and if made it was clearly nudum pactum. Besides, it appeared without dispute on this record that, as between the two partners, it belonged to Smith to pay the notes. The principles involved in the case are covered by Moore v. Foote, 34 Mich., 443, and Osborn v. Osborn, 36 Mich., 48, and require no discussion here. The judgment is affirmed with costs. The other Justices concurred.