30 N.W. 383 (Mich. 1886), Nichols, Shepherd & Co. v. Shaffer

• Citation: 30 N.W. 383, 63 Mich. 599
• Opinion Judge: CAMPBELL, C.J.
• Party Name: NICHOLS, SHEPHERD & CO. v. SHAFFER.
• Attorney: [63 Mich. 600] Wheeler & McKnight, for plaintiff and appellant. Giddings & Crandall, for defendant.
• Case Date: November 11, 1886
• Court: Supreme Court of Michigan

Page 383

30 N.W. 383 (Mich. 1886)

63 Mich. 599

NICHOLS, SHEPHERD & CO.

v.

SHAFFER.

Supreme Court of Michigan

November 11, 1886

Error to Gratiot.

Action to replevy horse-power engine. Verdict and judgment for defendant. Plaintiff appealed. The facts are sufficiently stated in the opinion of the court.

[63 Mich. 600] Wheeler & McKnight, for plaintiff and appellant.

Giddings & Crandall, for defendant.

CAMPBELL, C.J.

Plaintiff brought this suit to replevy a 10 horse-power engine, with truck and other appendages, claiming to hold it under a chattel mortgage given in April, 1883, upon this property, and upon a 17 horse-power engine and a separator, to secure $1,390 in several installments. In July, 1884, one Adams, an agent of plaintiff, went to defendant to get the mortgaged property. Shaffer at that time gave him up all the other property, but desired to keep this engine. This was in fact left, and the rest taken away. At the same time a portable saw-mill was turned over to Adams, and included in a new chattel mortgage of the same conditions as the old one. All the other property, including [63 Mich. 601] this saw-mill, was sold under the mortgage security. No extension of time, or other legal consideration passed for the saw-mill mortgage. The whole dispute in the case arises upon whether this was merely an additional security, or whether the saw-mill was put in upon the consideration that the property now replevied should be released from the mortgage. The jury found for the defendant.

If defendant and his witnesses told the truth, and the jury evidently believed them, then there was no question but that the saw-mill was intended to be a substitute for the engine which was released. Upon this question the verdict is conclusive, if the other difficulties suggested do not stand in the way.

Page 384

The principal contest is upon the authority of Mr. Adams. The court told the jury he had no authority to make the exchange, unless it was ratified, but left it to the jury to determine whether it was ratified or not. The several assignments of error all bear upon this question of ratification.

It appears from the record that one Worden, the collecting agent of plaintiff, went in October, 1884, to Shaffer, and wanted this engine, and did not get it, and that Shaffer claimed it had been released; and this replevin suit was the sequel to this...