Flannery v. Brewer

• Decision Date: 23 June 1887
• Citation: 33 N.W. 522,66 Mich. 509
• Parties: FLANNERY, Adm'r, etc., v. BREWER.
• Court: Michigan Supreme Court

33 N.W. 522

66 Mich. 509

FLANNERY, Adm'r, etc., v. BREWER.

Supreme Court of Michigan

June 23, 1887

Error to circuit court, Kent county.

Maher &amp Felker, for plaintiff.

Godwin Adsit & Rogers, for defendant and appellant.

CAMPBELL C.J.

Plaintiff sued defendant in trover for the conversion of goods of his decedent. The defendant pleaded the general issue, with special notice that he was administrator of William Budlong and that the property had been Budlong's, and that all his dealings were in that capacity, and to protect the estate. The facts necessary to understand the controversy are these: Annette Budlong, who died in April 1886, was wife of William Budlong, who died in June, 1886. In August, 1873, Budlong conveyed his farm to his wife to revert to him in fee in case she died first. He also conveyed a lot of personal property by bill of sale which bound her, and her executors, administrators, and assigns, to allow Budlong the use of this property for life. Upon her death, nearly 13 years after, as plaintiff proposed to inventory her property, and remove what was not subject to the life-estate, Budlong filed a bill to enjoin the administrator from intermeddling, and to restrain another person claiming under Annette Budlong, and to get the contract reformed so as to give the personalty back to him after her death. An injunction was granted, and continued in force until September 6, 1886, when it was dissolved, and a demurrer sustained to the bill, but with leave to amend. Thereupon Flannery, the plaintiff, demanded possession of the personalty, and on the thirteenth of September made a personal demand in writing. He had previously, in July, after Budlong's death, notified defendant, as Budlong's administrator, of his claim, and in the inventory of Budlong's estate it was noted that the property was claimed for Annette's estate.

When making the demand, on September 13th, plaintiff testifies, in substance, that, upon defendant's stating that he wanted time to consult his counsel before making answer, plaintiff agreed to wait till the 15th. On that day they had an interview, and defendant would not say what he would do. A proposition was made to give him further time if he would agree that no attempt should be made to serve papers on plaintiff before the latter could sue; the object being to prevent an injunction without bonds under the statute. Defendant refused to do anything which would prevent his counsel from taking any steps they thought fit. He was told that if he would not do this, or give up the property, plaintiff would sue, and defendant said he would have to do so. This conversation was in presence of plaintiff's counsel.

After they left his office, defendant produced and handed plaintiff a written paper, previously prepared by his counsel, claiming that he could not answer without time to deliberate, and promising to answer in three or four days, and to keep the property safely in the mean time. Suit was at once begun. Subsequently defendant undertook to file amendments to the bill and to get a receiver, who sold the property. No injunction was granted against this suit. Upon the trial of the present cause the court below held that all the chancery proceedings before suit brought were properly in evidence, but refused to admit those had pending suit. The court also excluded testimony of various talks concerning a compromise holding and sale which resulted in no agreement.

There is no question now made concerning Annette Budlong's title. The only defense practically insisted on is the right of defendant to do what he did without liability in trover for conversion. The court, after referring to the existence of the chancery suit in July, when defendant took possession, and to the demand and dealings before suit brought, gave the following charges in regard to defendant's liability:

"Now, in the first place, as to the fact of the taking of possession of this property, by the defendant in the first instance, and while the injunction was in force prohibiting the plaintiff from taking possession, I instruct you that this did not necessarily constitute a conversion of the property by the defendant. It must be further found that the defendant either disposed of the property, which I think is not the claim here, or that he intended to deprive the plaintiff of the property. This does not involve any question of fraudulent purpose on his part. It is enough if, having knowledge of the plaintiff's claim, he determines to exclude him from the possession of the property, and take the consequences. He would have a reasonable time in which to ascertain the facts as to the plaintiff's claim, but in this case there is no such question, as the defendant understood, when he took possession of the property, and when he inventoried the goods, that the plaintiff claimed them. The defendant understood this. He would also have a reasonable time to take legal advice; but I instruct you if he had had such opportunity, and had obtained such advice, delay on a pretense of obtaining further advice with and for the purpose of beginning proceedings in equity, is not, as a matter of law, an excuse for not delivering the property. The general rule is that an unqualified refusal to deliver property by one not having the right of possession

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