Miner v. Lorman

33 N.W. 866, 66 Mich. 530, 1887 Mich. LEXIS 517

• Court: Michigan Supreme Court
• Decided: June 23, 1887
• Status: Published

Opinion

MoRsb, J.

This is the third time this case has been here before us. It will be found reported in 56 Mich. 212, and in 59 Id. 480; and we deem it unnecessary to again state the facts of the case in detail.

The action is based upon an alleged settlement of partnership accounts between the parties. The plaintiff introduced in evidence a memorandum purporting to be drawn from the books of the firm by one Sanderson, from which it was claimed the settlement was made. The defendant objected to its being admitted in evidence as incompetent and immaterial. The plaintiff testified that they made the settlement from this memorandum, which was drawn from the books by Mr. Sanderson, instead of going through the books themselves. Although this was denied by the defendant, the fact of such settlement being made from it was for the jury to determine. It was therefore properly admitted in evidence.

The defendant testified on this trial that he had been in partnership with plaintiff, and admitted that on the first and second trials he had testified that he had not been in copartnership with him. In explaining this discrepancy, he said that he did not suppose, until informed recently that his arrangement with defendant constituted a copartnership; inasmuch as he put no money in the business; plaintiff furnishing the funds, and defendant sharing in the profits, and receiving $800 besides. He was then asked, on cross-examination, if there was any reason why he should not form a regular copartnership with plaintiff. This was objected to as immaterial.

It appeared from his answer that he had been in the ice business before, and had leased such premises for five years, agreeing during such time not to .engage in the same business, and giving bonds to keep such agreement. It is claimed by defendant’s counsel that this matter had no legal connection with the issue on trial, and that this answer prejudiced the defendant before the j ary.

We think it was proper cross-examination, under the circumstances, within the discretion of the trial court.

Complaint is also made of the closing argument of plaintiff’s counsel. It is insisted that such counsel abused his privilege, and by introducing and referring to facts not in evidence, and in commenting upon the defendant’s plea of the statute of limitations and his failure to introduce certain evidence, the said counsel was allowed improperly to influence the jury against the defendant.

It would appear from the record that the remarks of plaintiff’s counsel upon which error was assigned were evidently in answer to matters brought to the attention of the jury by defendant’s counsel, and we do not think they were so far out of the way as to justify a reversal of the cause.

The judgment is affirmed, with costs.

The other Justices concurred.