Dole v. McGraw

• Citation: 38 N.W. 686,71 Mich. 106
• Court: Supreme Court of Michigan
• Decision Date: 22 June 1888
• Parties: DOLE v. MCGRAW.

38 N.W. 686

71 Mich. 106

DOLE v. MCGRAW.

Supreme Court of Michigan

June 22, 1888

Error to circuit court, Bay county; S. M. GREEN, Judge.

Trover by George E. Dole against Thomas H. McGraw. Judgment was rendered in favor of plaintiff for six cents damages, and he brings error. For opinion in the case of McGraw v. Dole, which was a bill in equity filed by the defendant to restrain the prosecution of this suit see 29 N.W. 477.

A guardian, having no power to commit waste, gave a license without authority, to another to commit waste. The latter with the guardian's assent, applied the proceeds of the timber to the payment of taxes and debts against the infant's estate. Held allowable. Probate Court v. Bates, 10 Vt. 285. A tax collector became a purchaser at a voidable sale; but, as the proceeds were applied in payment of plaintiff's tax, held the amount could be deducted. Pierce v. Benjamin, 14 Pick. 356. A sale by a sheriff without notice, same. Wright v. Spencer, 1 Stew. 576. Goods tortiously taken by a creditor, afterwards attached, etc., same. Curtis v. Ward, 20 Conn. 204; 1 Suth. Dam. 240, 241. Courts of law, in actions of trover, are authorized to investigate the justice and equity of the particular case, in a manner and upon principles similar to those by which, in such courts the defense of partial failure of consideration is shown. 3 Suth. Dam. 528. If the case is such that the plaintiff can be fully compensated by a sum of money less than the full value of the property which was converted, the recovery will be limited to the amount that will suffice for complete indemnity. The plaintiff will be confined to compensation commensurate with the actual injury. Id. 527. The rule is different in England, New York, and perhaps some other states; but the overwhelming weight of American authority is in favor of the rule as stated. 3 Suth. Dam. 533, where the rule is clearly stated. Where an officer was sued for attaching exempt property, but, by direction of the creditor, who had become the legal owner of the mortgage thereon, sold it on the mortgage, this was allowed to be shown in mitigation. Cooper v. Newman, 45 N.H. 339. The doctrine is fully settled in this state. Brink v. Freoff, 40 Mich. 614, 44 Mich. 69, and 6 N.W. 94.

SHERWOOD C.J.

Plaintiff brought trover in the circuit court for the county of Bay to recover the value of a lot of personal property, consisting mostly of lumbermen's camp supplies and equipage, of the alleged value of $20,000. The plea is the general issue. No question arises upon the pleadings. This matter was before us at the last October term. The case was then in equity, and involved partnership dealings; the defendant having then filed his bill to restrain the prosecution of this suit, and for an accounting McGraw took the property and converted it claiming an equitable lien upon it at the time, and this suit was brought by Dole to recover the value thereof. This court, on the hearing in the chancery case, reversed the decree made at the circuit, which sustained the injunction, and allowed the plaintiff to proceed in this suit to final judgment; and further directed that, after such judgment was obtained, a further accounting should be had, in which the amount found due to Dole as damages in this suit, if any, should be allowed to him as a credit in his favor upon such accounting, and subject to such further directions and decree as the circuit judge might see fit to make, and to the right of appeal by either party; and allowed the plaintiff herein to recover his costs in that suit upon the appeal. See McGraw v. Dole, 29 N.W. 477. The facts, as found by the circuit judge, are as follows: "(1) A written contract was entered into between George E. Dole and Thomas H. McGraw & Co., composed of Thomas H. McGraw and Charles Watrous, on the 8th day of May, 1880. *** (2) That afterwards, and on the 4th day of April, 1881, Thomas H. McGraw & Co. purchased from William F. Jones and wife, of New York, certain lands, and received a warranty deed therefor, *** and that the lands so acquired were purchased pursuant to the said agreement made with said Dole. (3) That a written agreement was entered into between said George E. Dole and said Thomas H. McGraw & Co., upon the 13th day of September, 1880, *** and that afterwards the said Charles Watrous, one of the said firm of Thomas H. McGraw & Co., assigned and conveyed all his interest in said lands, and under said contracts, to Thomas H. McGraw, who thereafter became entitled to all the rights and subject to all obligations of said firm thereunder. (4) That all the money paid to said Jones for lands in said conveyance *** was paid by said Thomas H. McGraw, and that no part of the same was or has been paid by the said George E. Dole. (5) That, after said contract *** had been entered into, said Dole commenced operations thereunder; that he purchased a logging railroad which had been previously operated for some time by one Gordon, about five miles from the lands in question; took, removed,...