Farwell v. Myers

• Citation: 26 N.W. 328,59 Mich. 179
• Court: Michigan Supreme Court
• Decision Date: 20 January 1886
• Parties: FARWELL and others v. MYERS.

26 N.W. 328

59 Mich. 179

FARWELL and others v. MYERS.

Supreme Court of Michigan

January 20, 1886

Error to Cass.

Hiram A. Fletcher and Geo. P. Wanty, for plaintiffs and appellants.

Howell & Carr, for defendant.

MORSE J.

Between August 7 and December 10, 1883, the defendant, who was then engaged in the mercantile business at Cassopolis, Michigan bought of plaintiffs several bills of goods, amounting in the aggregate to $10,396.69, and paid on account $896.14. On January 4, 1884, defendant made a general assignment for the benefit of his creditors to one Henry W. Smith. This assignment is admitted to be valid, and this suit is in recognition of the same. On the eighth day of January, 1884 the plaintiffs brought replevin in circuit court of United States for Western district of Michigan, for all the goods sold by them to Myers, as hereinbefore mentioned, and their writ of replevin mentioned and described, and commanded the marshal to take and deliver to the plaintiffs each and all the articles sold by them to him, as aforesaid. On this writ the marshal took and delivered to the plaintiffs goods therein mentioned, valued and appraised at $3,420, but which had been charged to defendant in said account at $4,104, and this latter sum made a part of the said $9,500.55. The goods so taken by the marshal were such as he found in the store and were parts of all the different bills purchased, and he returned that he was unable to find the other goods in said writ mentioned. The plaintiffs grounded their replevin suit upon the claim that Myers did not intend to pay for the goods when he bought them, and that they had, before they brought their suit in replevin, elected to rescind the sale to him in consequence of his fraud, and gave notice of such election to the assignee before this writ of replevin issued. The replevin suit was tried upon this theory, the evidence sustained it, and the plaintiffs had judgment on the twelfth day of December, 1884. On the fifteenth day of December 1884, the plaintiffs filed their claim in the clerk's office of Cases county, attached to which was a statement of their account. Plaintiffs filed their claim, basing it upon said account as for goods sold and delivered, stating that the consideration was for merchandise, and that the debt was contracted at the dates the goods were delivered, and made no mention of the suit in replevin, or the judgment therein, crediting the defendant, however, with $2,267.15, as of March 20, 1884, being, presumably, their estimation of the value of the goods recovered under their action of replevin.

These facts appeared by stipulation, and also that on the twenty-sixth of December, 1884, there was still in the hands of the assignee about $1,500, besides some collectible accounts and notes, part of which were not yet due, all of which still remained in the hands of the assignee; that the proof of claim should be considered as complying with the requirements of the statute, and the credit item of $2,267.15 should be considered as $4,104, leaving balance against the insolvent's estate of $5,396.55, and all formal defects in said proof of claim were waived. On the thirteenth of May, 1884, 39 other creditors had proven claims against said estate, aggregating $15,368.67, and the assignee, after due notice, had declared and paid to them a dividend of 20 per cent. before the filing of plaintiffs' claim. The assignee gave all the notices required by law, of the assignment, and of proof of claims prior to January 15, 1884, and filed proof thereof as required by law, and the plaintiffs had all the statutory notices required by law prior to that date. On the twenty-third day of December, 1884, the assignee gave notice that the claim of plaintiffs, as filed, would be contested, and the same was thereupon duly entered on the law side of the court as a cause in the name of said plaintiffs as against said defendant, and a trial was had of the same, under the statute, before the court without a jury. The circuit judge found, as a matter of law, upon the facts above stated, that the claim of plaintiffs could not be sustained, and entered judgment disallowing the same.

It is urged here that, under the facts, the plaintiffs are entitled to recover. We do not think so. Early in the proceedings immediately after the assignment, the plaintiffs elected to rescind the sale of the...