Canfield v. W.J. Gould & Co.
| Decision Date | 04 January 1898 |
| Citation | 73 N.W. 550,115 Mich. 461 |
| Parties | CANFIELD v. W. J. GOULD & CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; James B. McMahon, Judge.
Action in trover by Georgie Canfield against W. J. Gould & Co., a corporation. Judgment for plaintiff. Defendant brings error. Affirmed.
Henry B. Graves, for appellant.
Lehman Bros. and F. J. Riggs, for appellee.
This is an action of trover, to recover the value of certain goods seized and attached at the instance of defendant. The attachment ran against the goods and chattels of Canfield Bros., and was commenced on the 22d day of September, 1896. On the 12th of September, 1896, Canfield Bros. had given to the plaintiff a bill of sale of their stock in trade, book accounts, etc.; and the questions presented on the trial related to this transfer, and its bona fides. The plaintiff recovered the value of the goods seized, $279.53, and defendant brings error.
It is contended (1) that the transfer should be construed as a general assignment for the benefit of creditors; (2) that the plaintiff is estopped by her pleadings from recovery upon any other theory than that she was the absolute owner of the stock in question; (3) that, if the bill of sale passed the title, then, as there was no immediate delivery, the transfer was presumptively fraudulent, and the instructions were faulty, in that the plaintiff was not, under the instructions given, required to show good faith on the part of Canfield Bros.
1. The evidence shows that the bill of sale conveyed all the property of Canfield Bros., it is true; but the sole purpose was to secure a single creditor, the plaintiff. No other creditors were either named in the instrument, or provided for by outside agreement. As was said by Mr. Justice Grant in Hill v. Mallory (Mich.) 70 N.W. 1016, "A debtor may prefer a creditor by a mortgage on all his property, or by a transfer of all his property in payment, when the value of the property is not so in excess of the debt as to raise the presumption of fraud." See, also, McMorran v Moore (Mich.) 71 N.W. 505, and cases cited; National Bank of Oshkosh v. First Nat. Bank of Ironwood, 100 Mich. 485, 59 N.W. 231.
2. The declaration contained counts in trover. This form of action was proper, even though the plaintiff's rights were those of a mortgagee only. Wright v. Starks, 77 Mich. 221 43 N.W. 868; McGraw v. Bishop, 85 Mich. 72, 48 N.W 167. It is contended that as the declaration contains a special count, in which plaintiff avers that she was the owner of the same goods described in the count in trover, she must be held bound by the averment in the special count. The only way that this question appears to have been raised in the court below was by preferring a request which read "The declaration of the plaintiff alleges an ownership of the disputed property in the plaintiff, and the undisputed evidence in the case discloses that plaintiff did not own the goods, and for that reason the verdict must be for defendant." The request does not challenge the attention of the trial judge to any conflict between the various counts of the declaration. Presumably, if it had, the court would have permitted an amendment. But we think that there was no such conflict between the various counts as precluded proof of the title which plaintiff established. The special count alleges the indebtedness of Canfield Bros. to the plaintiff and alleges...
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