Bendetson v. Moody

• Decision Date: 02 June 1894
• Citation: 100 Mich. 553,59 N.W. 252
• Court: Michigan Supreme Court
• Parties: BENDETSON v. MOODY.

59 N.W. 252

100 Mich. 553

BENDETSON v. MOODY.

Supreme Court of Michigan

June 2, 1894

Error to circuit court, Mecosta county; John H. Palmer, Judge.

Action by Moses A. Bendetson against Watson D. Moody. There was judgment for defendant, and plaintiff brings error. Reversed.

Frank Dumon, for appellant.

Sweet &amp Perkins, for appellee.

McGRATH C.J.

Plaintiff claiming to be the purchaser of a stock of goods from one Eighmy, brings trover against the sheriff, who seized the stock under a writ of attachment, at the suit of Swartout against Eighmy. The latter had a stock of goods, the estimated value of which was from $2,000 to $2,500. He was indebted to various parties in the sum of over $2,000. Within a month prior to the transfer of the property, a number of his checks, varying in amount from $18 to $215, had been dishonored and protested for nonpayment, and a number of drafts, varying in amount from $14 to $142, had been returned unpaid. There was testimony tending to show that the purchaser knew of this indebtedness, and of the debtor's anxiety to dispose of his stock. In view of the purchaser's own version of the negotiations pending the sale; the circumstances attending its conclusions; the anxiety evinced by the debtor to make the sale; the hasty manner in which the business was done; the fact that the estimates as to value of the stock were made in the nighttime, and by parties who were there in the interest of the purchaser; that the time was selected by the purchaser the reasons which he gives for such selection; that, in making these estimates, deductions were made from cost prices; that finally the items were summed up, and aggregated $1,575; that this sum was raised by the purchaser to $1,700 and 50 cents on the dollar named as the purchase price, the sum paid being but $850,-it cannot be said, as a matter of law, that there was no evidence that the sale was made with intent to defraud creditors, or that the circumstances attending it were not sufficient to have put the purchaser upon inquiry. We think, however, that the repeated instruction of the court to the jury that, if the property was the property of Eighmy at the time of the attachment, plaintiff could not recover, was calculated to mislead the jury.

Defendant introduced testimony tending to show that Eighmy was intoxicated at the time the stock was gone over and the sale concluded, and took little part in the matter, and that after the attachment was levied, and after this suit was commenced Eighmy selected his exemptions, and the same were set aside to him. There was no sufficient evidence to go to the jury as to a fraud upon Eighmy, even though that could have been made available as a defense in this action. As between Eighmy and plaintiff, the latter was the owner of the property, and the only defense available was that the sale to plaintiff was made with intent to defraud creditors. Complaint is made of the admission of testimony as to Eighmy's condition on...