Darrow v. Pierce

• Decision Date: 18 March 1892
• Court: Michigan Supreme Court
• Parties: DARROW v. PIERCE.

51 N.W. 813

91 Mich. 63

DARROW v. PIERCE.

Supreme Court of Michigan

March 18, 1892

Error to circuit court, Gogebic county; WILLIAM D. WILLIAMS, Judge.

Action by Zellie Darrow against William L. Pierce. Judgment for defendant. Plaintiff appeals. Reversed.

Button & Norris, for appellant.

M H. Crocker, for appellee.

MORSE C.J.

Plaintiff brought replevin in the Gogebic circuit court for the recovery of two horses, a heavy wagon, one double harness two pair of bob-sleighs, one platform scale, and other property. The officer who served the writ was unable to find the horses, wagon, and harness. Afterwards they were found in Wisconsin, and a suit in replevin commenced in that state for their possession. Plaintiff claimed the property taken on the writ in the case now here by purchase. It appears without dispute that the property at one time belonged to the Conover Meat & Provision Company, doing business at Ironwood, Mich and Hurley, Wis., the defendant being a member of the company. He sold out his interest in the business and the property in question in this suit as well as that in the Wisconsin replevin suit, to Otto Karste and James Mead. January 29, 1887, he rebought the entire business and property, giving in part payment therefor a mortgage on such property to Mead. Defendant then took in a partner by the name of Stevens, using the property in question until some time in April, 1887, when they took in another partner, Frank E. Field. The business was then conducted in the name of Field, Stevens & Co. until July, 1887, when defendant left the firm. Field and Stevens continued the business, using the property and having exclusive possession of it. During the existence of the firm of Field, Stevens & Co. an inventory of the property belonging to the firm was made, at which plaintiff assisted, he then being in the employ of the firm. When defendant went out of the firm, a dissolution of the partnership was executed in writing by the parties, in which it was provided: "All the property and assets of said firm, of every name and nature, is hereby conveyed and transferred to said Frank E. Field and Frank Stevens, to be by them sold, disposed of, or collected, as the case may be, and the proceeds thereof, net, applied by them towards the payment of the present debts of said firm and they hereby agree to dispose of such property and collect the accounts owing to the firm, and apply the net proceeds towards the payment of such debts. If any balance of such net proceeds shall remain after the full payment of such debts, then one-third of such net proceeds shall be by them paid to said W. L. Pierce for his use." It was claimed by plaintiff that the property involved in the two replevin suits, and mentioned in the writ in this case, was part of said inventory and partnership property; and that Stevens sold it to Field, and Field then sold it to plaintiff and one Robinson, who transferred his interest to plaintiff, the property going with the business at each sale, and remaining always in the possession of those who were carrying on such business. Darrow left the property with his brother, and on or about the 1st day of October, 1887, it was unlawfully taken by the defendant. The defendant admits the possession, as claimed by the plaintiff, but denies that the property ever passed by sale from him to Field, or to any other person or persons, and denies that it ever became the partnership property of Field, Stevens & Co. He testified that Stevens & Co. expected to buy this property of him, but never did. "They used the property with my consent, and it was to be paid for out of the business; but I never received any money for them, never sold them, and Mr. Field or Mr. Stevens never made any pretense to me that I had sold the property to them. They never paid any rent for them. They used the property but a short time, and it was then turned over to Darrow, [plaintiff;] Darrow paid me $90 for rent of this property."

The plaintiff called as a witness one John Kelly, who testified that he lived at Hurley, Wis., and had been employed by the firm of Field, Stevens & Co. as bookkeeper; that he helped to make an inventory of the partnership property of that firm May 22, 1887; that he did not know where such inventory was that it was in his possession until the latter part of April, 1888, when he left it with Stevens, who lives at Hurley. When witness went after it, he could not find it. "Question. how much of a search did you make for it? Answer. Well, I saw the book was gone, and...