Durrell v. Richardson

• Citation: 78 N.W. 650,119 Mich. 592
• Court: Michigan Supreme Court
• Decision Date: 23 March 1899
• Parties: DURRELL ET AL. v. RICHARDSON ET AL.

78 N.W. 650

119 Mich. 592

DURRELL ET AL. v. RICHARDSON ET AL.

Supreme Court of Michigan

March 23, 1899

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Replevin by Oliver H. Durrell and others against Henry W. Richardson Thomas E. Hall, and others. From a judgment for plaintiffs defendants bring error. Affirmed.

Julian G. Dickinson, for appellants.

Elliott G. Stevenson, for appellees.

MONTGOMERY J.

This is an action of replevin to recover a quantity of dry goods and notions sold by plaintiffs to defendant Richardson, the plaintiffs claiming that the goods were obtained by Richardson by means of false and fraudulent representations relating to his financial ability, and without any intent on his part to pay for them. The defendants Hall Bros. hold a chattel mortgage of $12,000, and the defendant Emma H. Hall one of $2,000, each covering the entire stock of Richardson of which the goods in question were but a portion. The record shows that the defendant William B. Hall made a motion to dismiss the proceeding on the ground that the writ is not in the form required by statute, because the writ contained no sufficient description of the goods, and because the writ commanded the officers to deliver the goods to Joseph A. Burns, agent for the plaintiffs, instead of the plaintiffs. The description of the goods was "a quantity of hosiery, underwear, dry goods, and notions, of the value of $4,700, shipped by Brown, Durrell & Co., and now contained in store number 90 Woodward Ave., and now occupied by Henry W. Richardson, one of the defendants herein." We think this description is sufficient, under repeated rulings of this court. Sexton v. McDowd, 38 Mich. 148; Farwell v. Fox, 18 Mich. 166; Burt v Addison, 74 Mich. 730, 42 N.W. 278; Peterson v. Fowler, 76 Mich. 258, 43 N.W. 10; Simmons v. Robinson, 101 Mich. 240, 59 N.W. 623; Dillon v. Howe, 98 Mich. 168, and note, 57 N.W. 102.

The imperfection in the form of the writ, in directing that the property replevied be delivered to the plaintiffs' agent, might have been remedied by amendment, and was waived by defendants when they joined issue on the case and proceeded to trial on the merits. Manhard v. Schott, 37 Mich. 234; Austin v. Burroughs, 62 Mich. 181, 28 N.W. 862; Stevens v. Harris, 99 Mich. 230, 58 N.W. 230; Clark v. Dunlap, 50 Mich. 492, 15 N.W. 565; Dailey v. Kennedy, 64 Mich. 208, 31 N.W. 125. The case of Warren v. Crane, 50 Mich. 300, 15 N.W. 465, cited by defendants' counsel, was distinguished in Dailey v. Kennedy by Mr. Justice Champlin, and its doctrine limited to cases in which the party is deprived of his liberty.

It is next contended that the evidence given on behalf of the defendants conclusively shows that the defendants Hall were good-faith incumbrancers, and as such entitled to a verdict. This contention has made it necessary to consider the entire evidence, all of which appears in the record, and it will be necessary to refer more at length to the facts in this opinion.

It appears that the defendant Richardson came to Detroit in the summer of 1896, and engaged in the dry-goods business at No. 90 Woodward avenue. After a brief but eventful career, he failed for a sum which no creditor complains of as too small. When his failure occurred, the Halls were found to have chattel mortgages, executed on September 23d, aggregating $14,000, i. e. $2,000 to Emma H. Hall, and $12,000 to Hall Bros. On the trial the defendants offered testimony to the effect that Richardson, who is a son-in-law of Mrs. Emma H. Hall, and a brother-in-law to the two Hall brothers, was formerly engaged in the wholesale liquor business in Louisville, Ky.; that in the spring of 1896 he sold out his business, receiving, as the Halls supposed, some $10,000; that in August, 1896, Mrs. Hall and Hall Bros. each received a letter from Richardson, stating that he had a stock of $20,000 to $25,000, and asking a loan, and offering a mortgage on the stock. The purpose of the loan was stated to be to enable him (Richardson) to buy a stock known as the "Winans Stock," which he expected to be sold cheap. The Halls offered testimony tending to show that they loaned Richardson, on September 2d, $12,000 in cash, and Mrs. Hall that she loaned him $2,000 in cash. Hall Bros. testify that the $12,000 paid to Richardson was made up of $11,600 which they had, and had for some time kept in their safe, and $400 drawn from the bank on their check. Mrs. Hall testified that she had the $2,000 in money in her house. Hall Bros. were engaged in running a milk depot and selling milk from the wagon. They explain the fact of having so much money on hand by stating that they had fear of the banks in Louisville. It is contended by plaintiffs' coun...