Brink v. Freoff

Decision Date16 June 1880
Citation6 N.W. 94,44 Mich. 69
CourtMichigan Supreme Court
PartiesBRINK v. FREOFF.

Where a mortgagee of chattels has seized the property mortgaged when only one instalment was due, and sold it to a third person for the satisfaction of the whole mortgage, a subsequent tender by the mortgagor of the amount of the mortgage, and demand of the property, is a mere idle ceremony, since the demand cannot be complied with. The mortgagor, under such circumstances, brought suit against the mortgagee to recover the value of the property which had been illegally sold. Held, that he was entitled to recover the value of the chattels which were sold after the first instalment had been satisfied, together with special damages, if any were shown but with deduction of the amount that then remained unpaid on the mortgage. But special damages can only be recovered where they are alleged and claimed in the declaration.

Error to Wayne.

Hawley & Firnane, for plaintiff in error.

Ward &amp Palmer, for defendant in error.

COOLEY J.

This case was once before in this court, and the decision is reported in 40 Mich. 610. The suit was by Freoff, in trover for the conversion of various articles of personal property. The defence was that Brink sold the same to satisfy the amount of a chattel mortgage which she held upon them. But it appeared that the mortgage was payable in instalments only one of which was due, and that Brink, in selling, disregarded that fact, and sold property to satisfy the whole amount. The controversy turns upon the rule of damages; it being conceded that Brink, in proceeding to sell further after what was due had been satisfied, was chargeable with a conversion. It was shown by Freoff that sometime after the sale he tendered to Brink the amount of the mortgage, and demanded his property back. On the first trial of the case the circuit court held that, as such a tender would discharge the lien of the mortgage, it would entitle Freoff to recover in trover the full value of the property which had been wrongfully sold. But this court held that such a tender, accompanied by a demand which Brink, by reason of having parted with the property could not comply with, would be an idle ceremony. Also, that though Freoff was entitled to recover for the sale of any further articles after the instalment which was due had been satisfied, yet that the recovery must be limited to actual damages. These damages would consist in the value of the articles wrongfully sold, and such others, if any, as the wrongful sale had caused, less the amount which Freoff would have been obliged to pay to satisfy the amount not yet due on the mortgage when the sale was made.

The second trial has evidently proceeded upon a...

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4 cases
  • Sparrow v. Hovey
    • United States
    • Supreme Court of Michigan
    • June 16, 1880
  • Brink v. Freoff
    • United States
    • Supreme Court of Michigan
    • June 16, 1880
    ...44 Mich. 696 N.W. 94BRINKv.FREOFF.Supreme Court of Michigan.Filed June 16, Where a mortgagee of chattels has seized the property mortgaged when only one instalment was due, and sold it to a third person for the satisfaction of the whole mortgage, a subsequent tender by the mortgagor of the ......
  • Lambert v. Griffith
    • United States
    • Supreme Court of Michigan
    • June 16, 1880
  • Sparrow v. Hovey
    • United States
    • Supreme Court of Michigan
    • June 16, 1880

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