Chipman v. Kellogg

• Decision Date: 08 April 1886
• Court: Michigan Supreme Court
• Parties: CHIPMAN v. KELLOGG.

27 N.W. 592

60 Mich. 438

CHIPMAN v. KELLOGG.

Supreme Court of Michigan

April 8, 1886

Error to Berrien.

Edward Bacon, for plaintiff.

James A. Kellogg, for defendant and appellant.

CAMPBELL, C.J.

Plaintiff presented a claim against the estate of Henry F. Kellogg deceased, which was carried by appeal from the commissioners to the circuit court for the county of Berrien, where he obtained judgment. Error is brought by the estate. The claim arose out of an assignment for the benefit of creditors, made May 11, 1876, by the firm of A.B. Chipman & Son to decedent, which was, by its terms, made to except the statutory exemptions of the partners, who were plaintiff and Gordon Chipman, to whose right plaintiff has become entitled. The assigned property included a stock of goods and some claims and securities. In order to facilitate a sale the assignors consented to have the whole stock sold together, and to receive the amount of their exemption from the proceeds of the trust. A sale was made shortly after, and the price was received during that and the next year. The parties all acted upon the idea that there was but one exemption, to the extent of $250, and decedent turned over notes out of which that amount was collected. Subsequently a decision of this court held that each partner owned an exemption, and in 1882 a demand was made against the assignee. The court found there was a balance of assigned funds in the hands of the estate of $87.66 which plaintiff was entitled to, but that under the circumstances there was no claim for any more, and gave judgment for that amount.

The only substantial question in the case is whether the action is barred by the statute of limitations. We think there is no doubt of the admissibility of the books of the trust kept by decedent, and of his declarations and admissions on the subject, to show the condition of the fund, and the recognition of the claim if not barred.

It is claimed by defendant that immediately on the collection by the assignee of money enough from the assets to pay the exemption he became, without further ceremony, liable in an action for money had and received, so that the statute then began to run. It is not found by the court, and the testimony does not make out very clearly, that all the money for the goods was received six years before the assignee died; but there was perhaps testimony authorizing a request to find the law on that basis. B...