Baxter v. Spencer

• Decision Date: 21 January 1876
• Citation: 33 Mich. 325
• Court: Michigan Supreme Court
• Parties: Andrew Baxter v. John Spencer. [1]

33 Mich. 325

Andrew Baxter v. John Spencer. ^[1]

Supreme Court of Michigan

January 21, 1876

Submitted on Briefs January 13, 1876

Error to Hillsdale Circuit.

Judgment reversed, with costs, and a new trial ordered.

George A. Knickerbocker, for plaintiff in error.

E. L & M. B. Koon, for defendant in error.

OPINION

Graves, J.

Baxter owned a yoke of oxen in 1874 subject to a mortgage made by one Holmes to Spencer. The mortgage was in common form to secure sixty dollars and fifty cents, November thirtieth 1874, with interest at ten per cent. No place of payment was expressed. Baxter was in possession, and before the mortgage fell due Spencer called on Baxter to take possession on it. Thereupon Baxter gave to Spencer in writing on a copy of the mortgage in Spencer's hands, his promise of guaranty of payment of the mortgage, and that he would pay him two dollars for his trouble, and hold the cattle until payment. Spencer there upon allowed them to remain in Baxter's possession. This occurred on the sixth of July, 1874, or about five months before the mortgage was to fall due. On the third of December, and whilst the cattle were in Baxter's possession, and at a place some distance from his residence, Spencer seized and drove them away without Baxter's knowledge or consent. Baxter then brought replevin; but under the charge by the court Spencer recovered. On the trial the foregoing facts appeared. There was also evidence tending to prove that when Baxter made his undertaking in July he offered payment, and Spencer refused it on the ground that the money was not due and he preferred it should stand on interest; that it was then mutually agreed that payment should be made at Palmer's store in Camden, and that the copy of mortgage having his guaranty of payment should be left at the store two or three days before maturity, to consummate satisfaction; that two or three days previous to the thirtieth of November Baxter called at Palmer's store for the mortgage in question, and it appeared that it had not been left; that on the thirtieth of November Spencer went to Palmer's store and inquired if Baxter had left any money there to pay the mortgage, and was informed by Palmer that Baxter had been there two or three days before, and had asked if the mortgage had been left there for him to pay, and had been told by him, Palmer, that it was not there, and had not been brought there; that Spencer then procured Palmer to write Baxter that he, Spencer, would be at the store on the ensuing Friday, December fourth,...