Hatzenbuhler v. Lewis

Campbell, J. Plaintiff sued defendant on the common counts, and recovered before a justice. Defendant appealed. On the trial at the circuit plaintiff undertook to recover for goods sold defendant by a firm of Robinson & Hatzenbuhler. Plaintiff’s claim was that the firm bad become dissolved, and that it was understood be was to have all the assets. No assignment was ever made, and it does not appear that any entries were made, or anything done beyond the arrangement or understanding in question. No notice was shown of any dissolution as given to defendant, [586] who produced a receipt in full from Robinson, which was/ given in settling up some old dealings about which there was some question how far they entered into firm dealings-The court below directed a verdict for defendant, giving as-a reason that no such dissolution was shown as would authorize the suit. JECosmer, for the motion, cited Kelly v. Waters 31 Mich. 404; Gregory v. Snell 31 Mich. 500; Sojoer v. Mills 50' Mich. 15, and Wiloox v. Railroad Go. 43 Mich. 584. We cannot reverse the judgment if this direction was-right, whether the precise reason did or did not involve an opinion on facts. We do not feel quite sure that the conclusion of the judge was not warranted as applicable to the-case as it stood. But there can be no doubt of the insufficiency of the declaration in regard to the assignment, and this may have caused some difficulty. The plaintiff declared simply'on the common counts, the effect of which, on such a cause of action as the peculiar one relied on upon the trial, was to assert that the goods were sold and delivered by plaintiff, and not by the firm. There is no reference to any assignment in any paper returned by the justice. The evidence, therefore, did not tend to prove the cause declared on, and the verdict could not have been sustained on error if given for plaintiff and properly complained of. The judgment must be affirmed with costs. The other Justices concurred.