Rumney v. Detroit & Montana Cattle Co. , 129 Mich. 644 ( 1902 )

Grant, J.

(after stating the facts). 1. "Was the defendant entitled to set off against the individual claim of the plaintiff the joint debt of plaintiff and his brother, if it could establish such debt? The contract upon which defendant’s set-off is based is not a several contract. The learned counsel for defendant call the Messrs. Rumney “trustees,” and argue that each is individually responsible for what came into his hands, or for his transactions with the defendant. The contract contains not a sentence from which an individual liability can be implied. They jointly, and not severally, agreed to carry out the contract. Any act of each in pursuance thereof was the act of both. Each was liable for the acts of the other. Naturally, each would be engaged in performing different acts from the other, in performing the contract. Defendant could not sue each separately, and probably would not attempt to do so, in bringing a suit upon the contract.It is immaterial whether you call the Messrs. Rumney “trustees” or “contractors.” They are no more trustees than are any other parties to a contract whereby they agree to manage the property of another, and to render an account therefor. The contract creates no such trust as would be enforceable in a court of equity. Equity could only obtain jurisdiction on the ground of an accounting, which can as well be had at law, as was done here, by referring it to a referee. This is not a case of a joint and several note, which may be set off against the demand of either of the makers, as was done in Ferguson v. Millikin, 42 Mich. 441 (4 N. W. 185). For this reason alone the judgment of the court below is correct.

2. The merits of the set-off cannot be considered by this court. The evidence is not reported. The defendant’s claim appears to be based upon the theory that, under the contract, defendant was to pay the actual cost, only, of hay and other articles purchased and furnished by the Messrs. Rumney. The contract itself expressly provided that it shall pay them only the cost. The referee reports that the details of the cost were not furnished, etc.; but why they were not furnished does not appear. There may have been good reasons. The case was tried some 10 years after the goods were purchased. Were the original bills lost, without fault of the Messrs. Rumney ? If so, would they not be entitled to resort to proof, by those who are familiar, “of the estimates of such cost,” which means, we assume, testimony by those who knew the cost of such articles at the time and place ? Certainly the referee must have had testimony to satisfy him that the Messrs. Rumney had complied substantially with the contract in this regard, and had legally excused themselves for not producing the items of actual cost. In the absence of any statement to the contrary, we must assume that such proof was before him. To illustrate: In these accounts are items of hay furnished from September 30, 1888, to October 15, 1893, amounting in all to $18,860, according to the bills, which appear to have been seasonably rendered. These were objected to by the defendant because their actual cost was not shown. This large account must certainly have been the subject of testimony which satisfied the referee and the court below as to its correctness, and that the items therein mentioned were furnished substantially in accordance with the contract.

Other questions are raised, but, as the above is conclusive of the result, we need not discuss them.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. -Long, J., did not sit.