Field v. Ashley

• Decision Date: 17 January 1890
• Citation: 79 Mich. 231,44 N.W. 602
• Court: Michigan Supreme Court
• Parties: FIELD v. ASHLEY.

44 N.W. 602

79 Mich. 231

FIELD v. ASHLEY.

Supreme Court of Michigan

January 17, 1890

Appeal from circuit court, Shiawassee county, in chancery; WILLIAM NEWTON, Judge.

Bill by Charles B. Field against James M. Ashley for an injunction receiver, and accounting under a contract for a conditional sale of personal property to the defendant by the Roscommon Lumber Company, assigned by the latter to the complainant. Defendant appeals from a judgment overruling a demurrer.

Fletcher & Wanty, for appellant.

Uhl & Crane, for appellee.

GRANT, J.

The bill alleges that the Roscommon Lumber Company on August 3, 1887, sold to the defendant its logging railroad property, consisting of locomotives, and other personal property, for $30,000, the last payment to become due October 15, 1887. Upon payment the company agreed to deed to defendant its right of way. Until paid for, the title to all the personal property was to be and remain absolutely in said company. Said contract was duly assigned by said company to complainant. Defendant went into possession of the property. There is due and unpaid the sum of $6,949.63. Defendant without the knowledge or consent of complainant, has sold a large part of said personal property. Defendant is pecuniarily irresponsible. Complainant has deeds of the right of way ready to be delivered as soon as defendant pays the amounts due. The prayer is for an accounting, for decree to pay the amount due, that in default thereof the property be sold under the direction of the court, for the appointment of a receiver, and an injunction to restrain the defendant from disposing of the property. The defendant demurred, both specially and generally. The demurrer was overruled, and defendant appeals. The first ground of demurrer is that the persons to whom defendant sold certain of the personal property, without plaintiff's knowledge or consent, are not made parties defendant. The only reason for making them parties would be that complainant wished to restrain them from paying defendant for the goods if they had not already done so. If they had paid him for them, they would not have been proper parties defendant, for, as against them, the complainant's remedy at law would have been complete and ample. If they had not paid him, still they are not necessary parties. Complainant has a perfect right to pursue his remedy against defendant alone, and the property still left in his possession. It is certainly equitable treatment...