Davis v. Buttars ( 1918 )

Bird, J.

Mary Davis, representing her husband’s estate, brought this suit against Archibald Buttars and Charles Bogardus to recover the contract price of a warehouse and stock of merchandise sold to them by her husband for the sum of $1,474.32. It was plaintiff’s claim that it was a joint purchase by the defendants and that both were liable for the purchase price. Defendants denied that it was a joint purchase and asserted that defendant Buttars purchased the merchandise and paid therefor the sum of $474.32, and that Bogardus purchased the warehouse and paid for the same by canceling certain indebtedness owing by deceased to him for lumber. There also appears to have been some claim made by defendants that an agreement was entered into after the purchase to the effect that Buttars should pay for the merchandise and Bogardus the warehouse. Some time after suit was started a receipt signed by Mr. Davis for $474.32 was found and the same was admitted to be genuine, and that part of the claim was eliminated. In response to the suit the defendants filed a joint plea and notice but subsequently the notice was amended by showing that Bogardus had been discharged in bankruptcy. The suit then proceeded against Buttars as sole defendant. The real issue was whether the purchase was a joint one. The jury found that it was and rendered judgment for plaintiff. Defendant Buttars assigns error.

1. An account book in which the deceased entered his sales was offered and received in evidence showing the following entry:

“October 23, 1905.. Sold the warehouse and stock to Buttars and Bogardus for $1,474.32.”

The admission of this entry is said to be error for the reason that no proper foundation was laid. It appears from the testimony of the daughter that her father had no regular bookkeeping system; that the book in question was the only one he kept. In it he entered sales as he made them; that the entry was an original entry, was made by her father and was in his handwriting. Other testimony shows that the entry bears date of the day when the sale was made. We think this testimony fairly satisfied the rule with reference to the admission of books of account. The Seventh-Day Adventist Pub. Ass’n v. Fisher, 95 Mich. 274; Macomb v. Wilkinson, 83 Mich. 486.

The further claim is made in this connection that it was error because it placed before the jury the deceased’s version of the sale. The entry which the deceased made did not differ materially from the ordinary entry in books of account. It was unlike the situation pointed out by counsel in the case of Collins v. Shaw, 124 Mich. 474. The fact that the deceased charged the consideration for the warehouse and stock of goods to Buttars and Bogardus would be some evidence that the sale was made to them. Larson v. Jensen, 53 Mich. 427; Montague v. Dougan, 68 Mich. 98.

2. In that part of the charge in which the court attempted to state to the jury the claims of the defendant, he made use of the words: “They do not give any evidence that would bear directly.” Counsel construes these words as having reference to their claim that the stock was purchased by Buttars and the warehouse by Bogardus and¿ therefore, was a misstatement of fact. We do not so construe the language. We think it is a fair construction to say that this language had reference to another claim of defendants that Davis was owing Bogardus and, therefore, it was arranged that Bogardus should settle for the warehouse. The jury could not have been misled by this language as both Buttars and Bogardus testified without objection that it was a several purchase and the court later instructed them that the issue was whether it was a joint or several purchase.

3. The failure of the court to set aside the verdict because it was contrary to the great weight of the evidence is assigned as error and counsel urges that the claim is without merit and should have been disposed of by the court. Whatever may have been the private opinion of the trial judge concerning the merit of the claim he was confronted by testimony which made an issue of fact as to whether the purchase was a joint or several one, and it thereby became his duty to submit the question to the jury. They found as two former juries had found on the same state of facts. There was testimony which, if believed, would furnish a basis for this conclusion, and we think the trial court very properly refused to disturb it, on the ground that it was contrary to the great weight of the evidence. The defense rested principally upon the testimony of the defendants which was clearly incompetent under the statute, 3 Comp. Laws 1915, § 12553. While no question is raised upon the record concerning the admission of this testimony, we do not think it should be used by us as a basis for reaching the conclusion that the verdict was contrary to the great weight of the evidence.

Steere, Fellows, Stone, and Kuhn, JJ., concurred with Bird, JJ.