Hillman v. Hulett

Carpenter, J. Plaintiff is an undertaker in Tuscarora, Nev. He brings this suit to recover for a casket and shipping box in which the body of one L. F. Harris, the father of defendant Allie and father-in-law of defendant Bert, was shipped from Tuscarora, Nev., to Armada, Mich. The suit was tried before the court, who made a finding of facts and rendered judgment in favor of plaintiff and against both defendants (who are husband and wife). Defendant Bert alone appeals, and asks a reversal of that judgment upon four grounds: (1) There is no testimony tending to establish his liability. (3) There was no evidence tending to prove the value of the goods furnished by plaintiff or the reasonableness of his charges. — 291 — (3) Appellant’s liability — if he is liable at all — is a several liability, and it cannot be enforced in this suit where he and his wife are sued jointly. (4) Appellant’s alleged agreement was “ a special promise to answer for the debt of another,” and was therefore void, because not in writing, as required by section 9515, 3 Comp. Laws. Each of these grounds will be separately considered. 1. Was there testimony tending to establish appellant’s liability? In determining this question we should and do state the testimony most favorably to plaintiff. Harris, the deceased, was a member of the Armada Lodge of Odd Fellows. In Tuscarora he affiliated with the Tuscarora-Lodge of Odd Fellows. The Tuscarora Lodge looked after him during his last illness, and, when he died, its chief officer telegraphed notice of that fact to defendant 'Allie and to the Armada Lodge. The telegram to defendant Allie was delivered to appellant Bert, and he thereupon authorized the telegraph operator to have the body shipped to Armada at his expense. The operator sent this dispatch in the name, not of appellant Bert, but of defendant Allie. Very soon thereafter the operator, who was sécretary of the Armada Lodge of Odd Fellows, notified other officers of that lodge that appellant Bert had ordered the body shipped at his expense, and the chief officer of that lodge also sent a telegram guaranteeing the charges of shipment. This was done without consultation with appellant Bert, but as an act of kindness to him and upon the assumption that he would pay the expenses which it guaranteed. Before the body arrived, appellant Bert learned of the action taken by the lodge, and he said that the charges would be paid. The two telegrams, viz., the one sent by appellant Bert in the name of defendant Allie, and the one sent by the Armada Lodge, were duly received by the chief officer of the Tuscarora Lodge of Odd Fellows, who directed plaintiff to prepare the body for shipment and to ship it. The trial judge found that “the shipment was undoubtedly made — 292 — and the other expense incurred upon the faith of the Tuscarora Lodge, who in turn looked to the Armada Lodge.” The-Armada Lodge, it appears from the foregoing facts, was acting for and in behalf — that is, as the agent — of appellant Bert Hulett. It is true that it had no authority to so act, but, by the conduct above stated, appellant ratified its action and made himself liable therefor. Mechem on Agency, § 157; Heyn v. O’Hagen, 60 Mich. 157. I think the foregoing facts justified the plaintiff in holding, appellant responsible as the undisclosed principal for whom both the Armada and the Tuscarora Lodge acted. We áre therefore bound to say that there was testimony tending to establish appellant’s liability. 2. Was there evidence tending to prove the value of the goods furnished by plaintiff ? Plaintiff’s bill is as follows: •' Metallic lined casket and trimming..............§125 00 Shipping box, embalming fluid, etc............... 12 00 §137 00 Upon this bill was credited $20, cash paid, leaving a balance of $117. Respecting this bill, plaintiff’s deposition contained the following testimony: “ Q. Did you prepare Mr. Harris’ body for shipment home, and did you furnish casket, etc., for thát purpose ? • “ A. Yes, I did. “ Q- What were your charges for the services, casket, etc., in such matter ? “A. One hundred and thirty-seven dollars.” The point is now made that the foregoing furnishes evidence of plaintiff’s “charge” for the articles furnished, but not of their actüal “value.” This point assumes that the charges testified to by plaintiff had no relation to value. This is placing upon that testimony a narrow and extremely technical construction. If this construction had been insisted upon during the taking of testimony, when plaintiff could have supplied the needed testimony, it is possible the court might have approved it. But it — 293 — was not then insisted upon. Indeed, the point was not made until the testimony was all taken and the cause submitted. Under these circumstances, it may properly be held that defendant has acquiesced in placing upon that testimony the construction that plaintiff obviously intended should be placed upon it. It is clear that in giving this testimony the plaintiff intended to furnish evidence of the amount of defendant’s liability. He intended that from this testimony the court should infer not only that $137 was the amount charged, but that that amount was properly charged (and perhaps this inference is just. Ducoign v. Schreppel, 1 Yeates [Pa.], 347). This intention was obvious, and defendant’s counsel was bound to know it. Unless he acquiesced, it was his duty to speak. He did not speak; nor was anything done, either by him- or defendant, his client, to indicate his nonacquiescencé. I submit that there was nothing in the testimony of Mr. Hulett, the defendant, quoted by my Brother Blair, to indicate his belief that the amount charged by plaintiff did not afford evidence of value. Under these circumstances, plaintiff, had the right to assume that defendant’s counsel consented to this construction of the testimony, and it is to be presumed that he acted upon this assumption when he submitted his case. To thereafter permit defendant to contend that he did not acquiesce in this construction is to permit him to perpetrate an injustice. I think it is our duty to hold that defendant is estopped from insisting that the construction plaintiff placed on this testimony was not the proper construction, and, therefore, that there was evidence of the value of the articles sued for. The circumstance that the charge of perjury would not lie on this testimony is immaterial. By the concession of counsel courts often act upon testimony which is not under oath. In my judgment,- this is such a case. I submit that the principle applied in construing this testimony is not a novel one. It is construed in accordance with the intention of the parties. — 294 — 3. Can the defendant’s liability be enforced in this suit wherein he and his wife are sued jointly ? The point to this objection is not that there has in fact' been a joint judgment rendered against defendant and his wife— probably this point is not made, because defendant was not thereby prejudiced — but it is, to quote from defendant’s brief, “plaintiff cannot sue jointly on several promises made by different parties.” This is precisely what he is permitted to do, in cases commenced in the circuit court, by Circuit Court Rule No. 27, subd. c, as construed by this court. See McPherson v. Pinch, 119 Mich. 36; Durgin v. Smith, 115 Mich. 239; Root & McBride Co. v. Walton Salt Ass’n, 140 Mich. 441. But as this case originated in justice’s court, the question arises whether the rule above referred to is applicable. In Wright v. Reinelt, 118 Mich. 638, decided in 1898, we held that it did not apply in such cases, citing as authority therefor Anderson v. Robinson, 38 Mich. 407. In Anderson v. Robinson, the plaintiff was denied the right given by subdivision b of Circuit Court Rule No. 27 (at thqt time Rule No. 71) to discontinue against one of two defendants, who had appealed to the circuit court from a joint judgment rendered by a justice upon the ground that “ the appeal contests the liability asserted in the court of original jurisdiction, and if a joint one, the appellee has no power to change it into an individual liability in the appellate court against the consent of the appellant;” and the court added: “A contrary course would lead to strange and unjust results. ” Since these decisions were rendered the legislature has, by Act No. 137 of the Public Acts of 1903 (this is an amendment of Act No. 199, Pub. Acts 1899), made the practice in justice’s court conform to that prescribed in subdivision c of Rule No. 27 for the circuit court. Said Act' No. 137 also provides: “ In case the defendants, or any two or more of them, shall take any cause where they are joint defendants by appeal to the circuit court from the justice court, and — 295 — shall file a bond on appeal, and, on the trial in the circuit court, a verdict shall be rendered for one or more of such defendants so appealing, the surety or sureties on such appeal bond shall not be released from his or their liability on such bond by reason of such verdict, but judgment shall enter against said surety or sureties as well as against the defendant or defendants against whom verdict is ren - dered on such trial in the circuit court.” It seems to us very clear that the purpose of this act was to place cases appealed from justice’s court — as to the right of plaintiff to hold one of several defendants liable on his separate contract — on precisely the same footing as cases commenced in the circuit court; and we also think that this statute removes the objections to that practice referred to in Anderson v. Robinson, supra. This conclusion is in harmony with the decision of Wilson v. Medler, 140 Mich. 209. 4. Was defendant’s promise void, because not in writing? The claim that it is, assumes that it was a promise to pay the debt of his wife. This assumption is unfounded. According to the testimony of the messenger who delivered the telegram — and this testimony appears to have been credited by the trial judge — defendant made himself primarily liable. His was not, therefore, a promise to pay the debt of another, and the statute (section 9515, 3 Comp. Laws) relied on by his counsel does not apply. In my opinion, the judgment should be affirmed. McAlvay, C. J., and Grant, Ostrander, and Moore, JJ., concurred with Carpenter, J.