Brown v. Ring

• Decision Date: 25 October 1889
• Court: Michigan Supreme Court
• Parties: BROWN ET AL. v. RING ET AL.

43 N.W. 770

77 Mich. 159

BROWN ET AL. v. RING ET AL.

Supreme Court of Michigan

October 25, 1889

Appeal from circuit court, Saginaw county.

Bill by William N. Brown and John C. Leaton against Charles E. Ring Elliott O. Eastman, Sidney L. Eastman, and Fred Hempy to enjoin the disposal of property, and for the appointment of a receiver. Order for complainants. Defendants appeal.

SHERWOOD C.J., dissents.

For dissenting opinion, see 43 N.W. 1152.

LONG, J.

We take the statement from the brief of complainants' counsel as to the claim made in the bill. The complainants, on February 9, 1887, by two contracts, agreed to sell to Charles E. Ring 2,000,000 feet of white pine shingle logs, to be delivered by them in the limits of the Tittabawassee boom, for $7 per thousand feet, payable, on one contract, $2,000 in 90 days $1,500 in 4 months, $1,500 in 6 months, in notes of Mr. Ring and the balance (of $5,500, more or less) in 90 days from delivery of logs in boom limits, by Ring's notes, if the complainants so desire. Payments under the second contract were to be $500 down, $1,000 in 4 months, $500 in 6 months, in Ring's notes, and balance ($1,500, more or less) in 90 days from delivery of the logs in the boom limits, by Ring's notes, if complainants so desired. A scale of the logs was to be made by D. C. Kendall, who was to decide when the logs were delivered in the boom limits. Both the contracts contain the following provision, viz.: "It is further agreed that, in case said second party desire to renew any of the above notes, first parties agree to indorse such renewals, should they be presented for payment, until the shingles manufactured from the logs herein bargained for shall be sold. It is expressly understood that the title to said logs, and the shingles manufactured therefrom, shall remain in the first parties until all the notes given in payment by second party to first parties are paid; also agreed that a discount on all notes shall be paid by second party." Both contracts provided that, in case the winter should make it impossible to get in the full quantity of logs, then the first parties only sell and deliver such an amount as they shall have at the breaking up of hauling; and, in case the mill operated by second party should blow up or burn up, he should take only so many of the logs as he should manufacture up to that date, and the notes in excess of the amount manufactured to be paid back by the first parties.

The complainants filed their bill setting out these contracts, and state that they put in about 1,700,000 feet of the logs, for which Ring delivered to them his notes, except such notes as were to be executed after the delivery of the logs in the boom limits,-the quantity of logs delivered from the boom to Ring, and which were manufactured by him into shingles, being 1,052,590 feet by the scale; that there has been paid on them only $1,140; and that there is now due and unpaid $6,618. It is further claimed by the bill that Ring manufactured the logs into shingles at the mill operated by him at Saginaw, piled his shingles on his dock, and, without the knowledge or assent of the complainants, sold to parties unknown to them large quantities of the shingles; that with the assent of Wells, Stone & Co., who, for a time, held said contracts and notes as a security by assignment from the complainants, said Ring sold to C. & E. Ten Eyck and to Wells, Stone & Co. a small portion of said shingles, the proceeds of which were applied on said purchase price of said logs, being the said sum of $1,140; and that Ring sold all the balance of the shingles to the defendants Elliot O. Eastman, Sidney L. Eastman, and Fred Hempy, who claim to own them, by said purchase, free from any claim or title of the complainants, and assert their intention to remove them. There are about 1,000,000 of those shingles now on the docks. The bill avers that Ring is entirely irresponsible; that he represented to complainants, from time to time, that he had no opportunity to make sale of the shingles, and that they were ignorant of any sales made; that Ring has sold without their knowledge, intending to cheat and defraud them; that some of the shingles have been removed beyond the jurisdiction of the court, and those remaining on the dock are exposed to loss by fire, and are so exposed that they cannot be insured, and they are also exposed to clandestine removal. The bill prays for an injunction against defendants to prevent the removal and disposition of the shingles, and for the appointment of a receiver to take care of them pending suit. The bill asserts that, upon the facts, the complainants have an equitable lien upon the shingles, and seeks to foreclose the lien by a sale of the shingles under the decree of the court. A preliminary injunction was issued, forbidding the removal or disposition of the shingles by the defendant.

The...