Clark v. Lee

• Citation: 78 Mich. 221,44 N.W. 260
• Court: Supreme Court of Michigan
• Decision Date: 28 December 1889
• Parties: CLARK et al. v. LEE.

44 N.W. 260

78 Mich. 221

CLARK et al. v. LEE.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Ionia county.

Mitchell & McGarry, for appellant.

Davis & Nichols, for appellees.

LONG, J.

The defendant is the sheriff of Ionia county, and held the stock of goods in controversy in this cause under several writs of attachments and executions on judgments rendered in the circuit court for said county in favor of Edson, Moore & Co. W. D. Robinson & Co., and Olney, Shields & Co. against one Clarence E. Monroe. The plaintiffs, claiming to be the owners of the stock, brought replevin against the sheriff, and took the same into their possession under the writ, and on the trial of the cause had judgment. On the trial of the cause Frank W. Clark, one of the plaintiffs, was called as a witness for the plaintiffs, and testified that Ann Clark was his wife, and that the plaintiffs were doing business at Odessa, Ionia county, in the firm name of Frank W. Clark &amp Co.; that they were in possession of the stock of goods on November 9, 1886, and had been since October 19th, previous and that on November 9, 1886, the goods in question were taken from the possession of the plaintiffs by the sheriff, under such attachments and executions; that plaintiffs came into possession of the goods by bill of sale from Clarence E. Monroe, who had been in possession of them for some time previous. It was admitted that demand was made before suit was commenced, and that the damage for detention was six dollars. Plaintiffs here rested.

It was claimed on the part of defendant, and testimony was given tending to show the fact, that on the 29th day of April 1886, Clarence E. Monroe, a young man, 23 years of age, and one Joseph Rickertson, a former clerk of Frank W. Clark, one of the plaintiffs in this case, formed a copartner-ship under the firm name of Monroe & Rickertson, and purchased from Clark, Russell & Co., doing business at Bonanza, Ionia county, composed of Frank W. and Ann Clark, plaintiffs herein, and James W. Russell, a stock of dry goods and groceries, for the sum of $800. Neither Monroe nor Rickertson put any money into the business. Payment was made by note,-one for $400, payable six months from purchase, and four $100 notes, due one, two, three, and four years from that date, with interest at 7 per cent. Monroe assigned, as collateral security to these notes, an interest in a real-estate mortgage held by him on property in Rhode Island. About two weeks after this, Monroe & Rickertson bought of Frank W. Clark & Co., a firm composed of the plaintiffs in this case, a stock of boots and shoes, and, in payment therefor, gave a due-bill, without any security, for the sum of $605. The goods under each purchase were inventoried, and purchased, as it is claimed, under the inventory. After the purchase, Frank W. Clark wrote to different wholesale firms in regard to the standing of Monroe & Rickertson. Among others, he wrote to Edson, Moore & Co., one of the plaintiffs in the attachment suit, as follows: "We have sold our stock to Monroe & Rickertson, who will conduct the business at the old stand. They will continue to buy their goods of you, and will be able to keep up their bills, as they have the stock clear, and money coming to them besides." This letter was written May 6, 1886. These stocks of goods were in the store building of the plaintiffs, and a verbal agreement was made between Frank W Clark and Monroe & Rickertson for the renting of this building at $100 per year, and, as plaintiffs claim, for the period of four years, or until the last of the $100 notes became due. The business was carried on by Monroe & Rickertson in this shape until September 16th of that year, when Monroe took a reassignment of the real-estate mortgage on the Rhode Island property, and went to Providence for the purpose of negotiating it. At the same time the firm of Monroe & Rickertson executed a chattel mortgage on the stock of goods purchased, for $1,600, to James W. Russell, to secure the firm of Clark, Russell & Co. It is claimed by defendant that up to this time $21 had been paid on the purchase, and that only $1,400 was then owing by Monroe & Rickertson; that they owed nothing but what was represented by the notes and due-bills. The chattel mortgage was drawn by Frank W. Clark; and Monroe testifies that the additional $200 was put in by Clark for the purpose of swelling the mortgage up to the value of the stock, to keep creditors away. Two weeks afterwards Monroe returned from Providence without any money, and appealed to Clark, as he testifies, to know what he should do, when Clark told him to continue on in the business, and to get Rickertson out, as he would not do as Clark wanted him to. At the same time, Clark suggested filling up the store with stock, and, in reply to Monroe's inquiry as to what the creditors would do, Clark stated that the mortgage would cover the stock, and that an assignment could be made, if necessary. Under this arrangement, the stock was increased to $2,200, with goods bought of various parties, including Edson, Moore & Co. and Olney, Shields & Co., two of the plaintiffs in the attachment suit. Under the same arrangement, Monroe got Rickertson out of the firm, on payment to him of $50. This was accomplished by intimidating him by fear of prosecution for selling tobacco without a license, if he remained longer in Bonanza. On the day of the dissolution of the firm, October 13, 1886, under the advice of Clark, as defendant claims, and to swell the amount of the indebtedness to keep off creditors, Monroe gave to plaintiffs in this case a further mortgage of $600 upon the stock. The alleged consideration of this mortgage was $200 "conscience money," claimed to have been mistakes in the inventories of the stocks of goods purchased by Monroe & Rickertson, and $400 for rent due and to become due for a balance of the term of four years, by the parol agreement. The figures on this "conscience money" were made by Clark, as Monroe testifies, without any agreement on his part, and that the amount left out of the inventory, and of which Clark was advised was not more than $5; and at the time of the making of the mortgage Clark said he would call the balance "$400 rent." Monroe says that at this time Clark did not claim that he owed him more than the $800 and the $600 on the two purchases. On October 19, 1886, plaintiffs bought Russell's interest in the $1,600 mortgage, and took an assignment; plaintiffs thus becoming the sole mortgage creditors of Monroe. On the same day they took from Monroe a bill of sale of the stock of goods and book-accounts for the alleged consideration of $2,200, the amount of the two mortgages. It is also claimed by defendant, and testified to by Monroe, that, in buying goods, executing mortgages, notes, and bills of sale, Monroe followed the advice of Frank W. Clark; that the amount of goods bought by Monroe & Rickertson of outside parties up to the time of the execution of the bill of sale was $2,500, and the amount paid on these bills was from $1,200 to $1,500; that in the whole transaction Monroe received but $75, and Rickertson but $50; that the value of the stock at the time was $2,500. It is admitted that the bill of sale was not filed, and it is claimed by defendant that there was no visible change in the business after the execution of the bill of sale; Monroe remaining in charge and conducting the business as theretofore from the time of the...