Bryant v. Wilcox
| Decision Date | 04 October 1904 |
| Citation | 100 N.W. 918,137 Mich. 669 |
| Court | Michigan Supreme Court |
| Parties | BRYANT v. WILCOX. |
Error to Circuit Court, Hillsdale County; Harry A. Lockwood, Judge.
Action by Ira N. Bryant against Amos Wilcox. There was judgment for plaintiff for part of his claim, and both parties tring error. Reversed.
Frankhauser & Cornell, for plaintiff.
F. A Lyon, for defendant.
One Ozon M. Keith was, in October, 1901, indebted to different parties in the sum of about $400. Keith, to secure the defendant for an indorsement of a note of $81, gave a chattel mortgage, which the testimony tends to show was given with the purpose of defeating Keith's creditors. The mortgage purported to secure an indebtedness of $500. One of Keith's creditors sued out an execution against Keith's property. Defendant, Wilcox, claimed to such creditor that he held a mortgage of $500, but notwithstanding this claim, and in defiance of it, the creditor levied. Keith thereupon requested the defendant to bring replevin, but it appears that defendant declined to assert in court the validity of the mortgage for its full amount. The plaintiff was then called in, and it was arranged that the mortgage should be assigned to him, and that he should interpose between Keith and his creditors. Some claim is made that the assignment was also to secure plaintiff for his indorsement of a note of $250, given by Keith and secured by a mortgage to Thompson's Bank; but at all events the testimony tends to show a purpose of asserting the mortgage as against the intervening creditor's lien and for its full face. The testimony further tends to show that for the purpose of making it appear to the levying creditor that the mortgage really secured $500, the plaintiff gave to the defendant his check for $500, which defendant was expected to exhibit to Cogswell, Keith's creditor, to convince him of the bona fides of the mortgage, or, at the option of the defendant, he was to draw the money on the check, and exhibit that to Cogswell. It was agreed that after this use of the check, either that or the money should not remain with defendant. Plaintiff claims it was to be returned to him. Defendant claims it was to be paid over to Keith. Upon this question the jury found with plaintiff. The defendant did not return either the check or money. Plaintiff brought this suit in trover to recover the amount of the check.
After suit was brought, two of Keith's creditors instituted garnishee proceedings to reach the fund. Defendant disclosed showing that plaintiff was a claimant. Plaintiff was cited to appear and make good his claim, under section 1017, Compiled Laws, but failed to appear. Judgment went against the defendant in the garnishment proceedings for amounts aggregating nearly $400. Defendant was permitted to plead such proceedings in bar. The circuit judge held that the garnishment proceedings were a bar protanto, and submitted to the jury the question whether the defendant agreed to return the check or money to plaintiff, with instructions that if he did, the plaintiff was entitled to recover the balance. Both parties bring error.
The plaintiff contends that the garnishment proceedings constitute no bar. The defendant asserts the bar of the garnishment proceedings, and further contends that the plaintiff is not entitled to recover any sum whatever, on the ground that the transaction was against public policy, and the law will...
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