Folkerts v. Standish
| Decision Date | 07 January 1885 |
| Citation | 21 N.W. 891,55 Mich. 463 |
| Court | Michigan Supreme Court |
| Parties | FOLKERTS v. STANDISH. |
Error to Alpena.
Turnbull & Dafoe, for plaintiffs.
Moore & Moore, (G.B. Clayburg, of counsel,) for defendant and appellant.
The Prentiss Lumber Company was organized March 22, 1882, and continued to do a lumbering business in the city of Alpena until January, 1884, having its office in said city. The defendant is, and has been for many years, a resident of Detroit, and loaned money. On the twenty-fifth day of August, 1883, the defendant had loaned to the Prentiss Lumber Company moneys to the amount of $14,000, and had become liable by way of indorsements and acceptances for the company to the amount of about $12,000 more. On that day, to secure the payment of the money thus borrowed and the defendant against liability upon his said indorsements and acceptances, and which he subsequently paid, the company made and executed to him a chattel mortgage covering about $200,000 of its personal property. At this time the defendant was informed and understood that the company had assets of the value of $350,000, and was owing about $200,000. On the third day of September, 1883, the defendant had not yet put his chattel mortgage on file, but understanding that under a recent enactment of the legislature, in order to preserve his rights secured by the mortgage against all creditors, it should be properly filed he notified the president of the company that unless prompt payment of the company's indebtedness to him, and of its indebtedness for which he was liable, was made, or real estate security given, or the property mortgaged placed in his possession, or sufficient sold to him to pay his claims and cover his liability, he should file his mortgage.
On the fifth day of September the president of the company wrote the defendant he could turn him out lumber to pay all his claims and on the same day defendant telegraphed the president to file the mortgage, or sell and deliver to his agent 200,000 feet of lumber, and upon receipt of which the company delivered to the defendant's agent the lumber, and immediately notified defendant of the fact. On the seventh of September the company sent to defendant an account of the sale and transfer of the lumber, accompanied by a receipt of the same, given by his agent. On the eleventh of September, 1884, the defendant went to Alpena, ratified the sale and transfer of the lumber to him, and settled with the company, and received from it the full amount of his account and claims, including his liabilities for the company, and assumed payment of the latter, all amounting to $26,641.72, taking his pay therefor in the lumber he had received to that amount, it being contained in 89 piles, which were marked and set aside as defendant's property.
The defendant returned to Detroit, and delivered to the company's attorney there, as agreed by the parties, the notes and other papers he held, evidencing the indebtedness to him. The following indorsement is written across the face of the large note accompanying the chattel mortgage and signed by defendant: "Canceled by settlement of notes and obligations for which this note and chattel mortgage of the same date was given as collateral security." Indorsed upon the mortgage was the following: "Paid on the within, September 7, 1883, by sale and delivery to my agent, Mr. Walker, subject to my order, (J.D. Standish,) eighty-nine piles lumber, on docks of the said Prentiss Lumber Company, guarantied to contain 2,089,000 feet, for the sum of $26,641.72, free of storage, and insurance paid until shipped."
It further appears from the record, which contains all the testimony in the case, that the defendant had sold all the lumber but a few thousand feet, which had been taken from him upon a writ of attachment, at the time proceedings in this case were instituted, and that the lumber was not worth the amount of the defendant's claim. The...
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