Cass v. Gunnison

Decision Date29 September 1885
Citation25 N.W. 52,58 Mich. 108
CourtMichigan Supreme Court
PartiesCASS and others v. GUNNISON.

Error to Mecosta.

Gliddens & Marsh, for plaintiffs.

Mitchel & McGarry, for appellant.

SHERWOOD, J.

This case was an action of replevin. The writ described the property in litigation. The declaration was in the usual form, and no question arises thereon. The plea was the general issue. The action is brought to recover a quantity of lumber. Defendant Hewitt alone defended. Two trials were had at the circuit. On the first the defendant succeeded, a new trial was granted by the circuit judge, and the second trial resulted in favor of the plaintiffs. After the bill of exceptions was settled Mr. Hewitt died intestate. Defendant Gunnison was appointed his administrator, and he removed the case into this court for review on writ of error.

The evidence tends to show the following facts, viz.: That in July, 1883, Willis P. Hewitt, who then resided at Muir, Ionia county, formed a copartnership with Albert H. Stevens and Elmore R. Oliver, who resided at Grand Rapids, under the firm name of Hewitt, Stevens & Co., to operate a mill and carry on the sash, door, and blind manufacturing business at Big Rapids. Hewitt owned the mill and manufacturing business, and sold to Stevens & Oliver an undivided one-half interest therein for the sum of $5,000, of which they were to pay $3,000 in lumber within 30 days, delivered at the mill; $1,500 to be secured by their note payable to Hewitt, and the firm to assume the payment of $1,000 of Hewitt's old indebtedness; Hewitt's interest in the partnership being equal to that of both of the other partners. The agreement was reduced to writing, and contained a clause that the title to the property sold to Stevens & Oliver should remain in Hewitt till paid for; that about the fifteenth of July, 1883, the plaintiffs entered into a contract with Hood, Gale & Co., of Big Rapids, to purchase of that firm about 2,500,000 feet of lumber, being all of certain kinds then in their yard belonging to Hood Gale & Co., and at certain prices for each grade, to be paid for in three or six months. The lumber was to be inspected and put on board of the cars, as plaintiff should order it at any time within three months.

Some few days prior to the third of August, 1883, Stevens &amp Oliver, for the purpose of paying Hewitt the $3,000 in lumber on their contract with him, made an agreement with the plaintiffs to purchase of them the lumber for that purpose to be of such kinds as they, Stevens & Oliver, should order, from time to time, the quantity to be determined by the price, until the $3,000 worth should be delivered; the lumber to be delivered in the cars as they should order, and shipped to the mill-yard of Hewitt, Stevens & Co. It was to be pine lumber from the yard of Hood, Gale & Co. A few days prior to the third of August, two car-loads and a few wagon-loads, to the value of $155.97, had been taken to Stevens & Oliver, at Hewitt, Stevens & Co.'s yard, and on that day Stevens & Oliver, in order to secure payment to the plaintiffs for the lumber contracted for as above stated, executed to plaintiff three notes of $1,000 each, payable in 60, 75, and 90 days, respectively, accompanied by a chattel mortgage, executed in like manner, to plaintiffs, which described the property covered thereby as follows: "All their right, title, and interest in and to the planing-mill, sash, door, and blind factory, and all machinery of every kind and description belonging or appertaining thereto; and also all the lumber now on hand at said mill and in transit belonging to said first parties, being the lumber purchased from said second parties; and also all stock manufactured from said lumber. It being intended that these presents bargain, sell, and mortgage all the interest of said first parties in and to said mill and appurtenances under and by virtue of a contract of purchase and sale, which said above-described goods, chattels, and property, at the date hereof, are situate in the city of Big Rapids, Mecosta county, Michigan, and are free and clear from all liens, conveyances, incumbrances, and levies, except the right of Willis P. Hewitt under said contract above mentioned."

Hewitt claims that he had no notice of this mortgage, and never heard of it until a long time after he had received the lumber and applied it in payment and satisfaction of his debt; that when he entered into his business relations with Stevens & Oliver he resided at Muir, and they were comparatively strangers to him; that his business interests in the firm were only looked after by its book-keeper, Mr Finch; and that when he received this lumber he believed it was free from all liens and incumbrances. He further claims that "the lumber was shipped from time to time, as ordered by Oliver & Stevens, up to and including the twenty-third day of August, at which time the last shipment was made. When Oliver & Stevens wanted a car-load of lumber, the plaintiffs would order it shipped to them from Hood, Gale & Co. Hood, Gale & Co. would bill it to the plaintiffs, and the plaintiffs to Oliver & Stevens. It was delivered on the inspection of Hood, Gale & Co. A portion of the lumber delivered was bought by the plaintiffs of Hood, Gale & Co. after the making of the chattel mortgage. As fast as the lumber was received it was turned over to Mr. Hewitt by Oliver & Stevens, to apply on the $3,000 indebtedness, which was to be paid in lumber within 30 days, and Hewitt received it and gave Oliver & Stevens credit for the same on that account, except a small amount which was not such lumber as Hewitt was to receive, and that this was used by the firm in making repairs on the buildings." And further, that at the time the mortgage was executed, and for a long time thereafter, Stevens and Oliver were both residents of Grand Rapids; that the mortgage was never filed in the city of Grand Rapids, where the mortgagees resided, but on the thirteenth day of August, 1883, it was filed with the recorder in the city of Big Rapids, and not until the mortgage was filed did the plaintiffs inform him of or show him the mortgage, and then claimed of him their interest thereunder. Hewitt refused to pay Stevens & Oliver's debts, and claimed that the firm of Hewitt, Stevens & Co. had run behind; that it had not paid the $1,000 assumed when the copartnership was formed; neither had Oliver & Stevens paid the note of $1,500 given to Hewitt at that time, and that the firm of Hewitt, Stevens & Co. was largely indebted to him; that this was the situation at the time this suit was brought; that the plaintiffs took upon their writ 1,037 feet only of the lumber delivered prior to and on the day of the date of the mortgage, worth about $9 or $10, and that the balance of the lumber seized was lumber shipped after that date, together with a quantity of lumber purchased by the firm of Hewitt, Stevens & Co. that had no connection with the lumber bought by Oliver & Stevens. The appraisal of the lumber was $1,740.37, and this, it was admitted upon the trial, should be taken as the value of the...

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    ...... Kimberly v. Patchin, 19 N.Y. 330,. 75 Am.Dec. 334; Newell v. Warner, 44 Barb. (N.Y.). 258; Croswell v. Allis, 25 Conn. 301; Cass v. Gunnison, 58 Mich. 108, 25 N.W. 52; Spivey v. Grant, 96 N.C. 214, 2 S.E. 45; Holman v. Whitaker, 119 N.C. 113, 25 S.E. 793; Tolbert v. ......
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