Tanner v. Page

McGrath, C. J. Plaintiff’s husband was in December, 1892, in the hardware business at Belding. For some unexplained reason he desired to close out his business and get away. He transferred his stock of goods to the defendant in consideration of a sum of money which was paid to him. The controversy here arises respecting certain accounts receivable, connected with the business, which were turned over to defendant. A formal bill of sale was made to defendant of these accounts. At the same time defendant signed and gave back to M. J. Tanner the following: “Received of M. J. Tanner book accounts and notes, for which I agree to pay to his creditors as fast as, received, or to his wife, except a reasonable amount for collection.” This suit was commenced in January, 1894, to recover I he balance remaining in defendant’s hands after the payment of the creditors. The first contention is that the court should have excluded all testimony because of the insufficiency of plaintiff’s bill of particulars. The bill described, generally, the character of plaintiff’s claim. It referred 10 accounts left with defendant for collection. If mot sufficiently full, defendant should have called for a more specific bill. Freehling v. Ketchum, 39 Mich. 299; Township of Buckeye v. Clark, 90 Mich. 432. It is next urged that the court erred in rejecting parol evidence on the part of defendant of the contents of the bill of sale of the stock of goods. The testimony traced the bill of sale into the hands of am insurance adjuster, but failed to disclose any further inquiry, and was clearly insufficient to warrant the introduction of parol proof of the contents of the written instrument. As bearing upon what would be a reasonable compensation for the collections, defendant offered to show that [159] at the time of the transfer the assignor suggested that 10 per cent, be inserted in lieu of the provision made, but the court rejected the testimony. There was no error in this ruling. Stange v. Wilson, 17 Mich. 342; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 150. Among the items of indebtedness alleged by defendant to be yet outstanding was a note of $100, given to 'one Pope. Plaintiff offered proof tending to show that M. J. Tanner had, on the day before he left, drawn a check in Pope’s favor for the amount of this note; that Pope had presented the check at the bank, and received the money upon it; and that the amount had been entered upon the books by M. J. Tanner as a payment of the note. The defendant sought to show that the sum so paid was to apply upon a claim for injuries to Pope’s son, caused by Tanner. One Ward was called by plaintiff to prove the payment. Upon cross-examination Ward was asked if he did not know that it was on account of this boy that Tanner fled the country. The court properly rejected the testimony. No proper foundation had been laid for the introduction of the testimony. In the absence of some means of knowing the fact, the answer would be but an expression of an opinion or a suspicion. Respecting the goods in transit at the time of the transfer, there was no proof that the bill of sale or the consideration therefor covered them. Plaintiff's testimony tended to show defendant’s admission that they were not included, and that the amounts paid therefor were not to be charged up against the collections. The question was one for the jury, and the court properly left it to them. The instruction given upon the subject fully protected the defendant. Defendant contends that, under the circumstances, a trust was created, and that plaintiff’s remedy is in equity, and not at law. Conceding the existence of the relation, the trust was executed with the exception of payment over. The accounts had all been collected and the indebtedness discharged. It was held in Catlin v. Birchard, 13 [160] Mich. 110, that, when a person assents to act as trustee in receiving money for the benefit of another, he becomes liable to am action for money had and received, if he fails to pay it over according to his duty. See, also, Collar v. Collar, 86 Mich. 507. Defendant paid a tax of $75.64 which was assessed upon the stock of goods, and the court held that the State was not a creditor, within the meaning of the term employed in the receipt given by defendant. In this, we think, the court erred. It was clearly the intention of M. J. Tanner to provide for the payment of his debts. This was a personal claim for which a suit against him would lie. The amount will be deducted from the judgment; otherwise, the judgment will be affirmed, with costs to defendant. Less, than three pages of defendant’s brief are devoted to the discussion of the question relating to the taxes, and a record of but a few pages would have been sufficient to raise that question. Defendant will be limited in the taxation of his costs for printing to 10 pages of record and 5 pages of brief. Judgment modified and affirmed. The other Justices concurred.