38 N.W. 686 (Mich. 1888), Dole v. McGraw

Citation:38 N.W. 686, 71 Mich. 106
Opinion Judge:SHERWOOD, C.J.
Party Name:DOLE v. MCGRAW.
Judge Panel:CHAMPLIN, MORSE, and CAMPBELL, JJ., concurred. LONG, J., did not sit.
Case Date:June 22, 1888
Court:Supreme Court of Michigan

Page 686

38 N.W. 686 (Mich. 1888)

71 Mich. 106




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.

[71 Mich. 107]


Plaintiff brought trover in the circuit court for the county of Bay to recover the value of a lot of...

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