Dewes Brewing Co. v. Merritt

• Citation: 82 Mich. 198,46 N.W. 379
• Court: Michigan Supreme Court
• Decision Date: 01 August 1890
• Parties: DEWES BREWING CO. v. MERRITT.

46 N.W. 379

82 Mich. 198

DEWES BREWING CO. v. MERRITT.

Supreme Court of Michigan

August 1, 1890

Appeal from circuit court, Mecosta county; JOHN H. PALMER, Judge.

F. A. Mann, for appellant.

C C. Fuller, for appellee.

CHAMPLIN C.J.

On the 18th of December, 1888, the F. J. Dewes Brewing Company and Leutz Bros. entered into the following agreement "Big Rapids, Mich., Dec. 18, 1888. It is hereby agreed by and between the F. J. Dewes Brewing Company of Chicago Illinois, and Leutz Brothers, of the city of Big Rapids, Michigan- First, that the F. J. Dewes Brewing Company agree to ship to Leutz Brothers all beer ordered by them at the following price, $5.75 per barrel, f. o. b., at Big Rapids, and that the right, title, and interest of said beer is to remain and rest in the F. J. Dewes Brewing Company until sold; and we, the said Leutz Brothers, agree to take the said beer, and pay for the same, on above conditions. Signed in duplicate. F. J. DEWES BREWING COMPANY, per ADOLPH BOUNDY, Agt. LEUTZ BROTHERS." The F. J. Dewes Brewing Company, under the above contract, sent to Leutz Bros. two car-loads of beer, which was received by them at Big Rapids. After they had sold about one and one-half carloads, the balance was levied upon by the defendant as sheriff of the county of Mecosta, and was taken away by him upon an execution in his hands, and issued upon a valid judgment in favor of a creditor of Joseph Leutz, one of the members of the firm of Leutz Bros., as his property. The circuit judge instructed the jury that, under the terms of the foregoing agreement, the absolute title to the beer passed at once to Leutz Bros., and was subject to levy and sale upon an execution in favor of the creditors of Leutz Bros., or either of them, and directed a verdict for the defendant.

This ruling raises the only question for our consideration. The writing contains an express condition that the right, title and interest of the property ordered was to remain and vest in the F. J. Dewes Brewing Company until sold. The learned judge was of opinion that this condition enabled Leutz Bros. to immediately sell the beer, and convey a good title, divested of any interest of the brewing company, and that the company could not follow the property into the hands of purchasers; that there was a plain understanding contained in the instrument that Leutz Bros. should be permitted to sell, and the fact of sale terminated the condition. The court further considered that, if the contract could be upheld, it would simply put it in the power of Leutz Bros. to do an extensive business, apparently on their own account, thus giving to them a false credit, to which they were not entitled in dealing with others. There is no testimony before us showing how the credit arose in this case, nor when the indebtedness accrued. It evidently was not a credit which the firm had acquired by dealing in this way with the brewing company, for it appears as an indebtedness against one of the brothers only, and not the firm. Now, the contract was one which it was competent for the parties to make, unless it was void as being against public policy. The brewing company had a right to say, "I will fill your order for beer, which you may sell as you choose, but the title shall remain in me until you do sell, and then the title will pass to...