Grimes v. Bowerman

• Decision Date: 10 June 1892
• Citation: 92 Mich. 258,52 N.W. 751
• Court: Michigan Supreme Court
• Parties: GRIMES v. BOWERMAN.

52 N.W. 751

92 Mich. 258

GRIMES v. BOWERMAN.

Supreme Court of Michigan

June 10, 1892

Error to circuit court, Ingham county; SHERMAN S. DABOLL, Judge.

Action by John Grimes against Michael H. Bowerman. Judgment for plaintiff. Defendant brings error. Affirmed.

Q. A. Smith, (Parkinson & Day of counsel,) for appellant.

Dolan & Durning, (W. F. Atkinson, of counsel,) for appellee.

MCGRATH, J.

This is an action for the malicious suing out of an attachment. Mead and Fleming, as copartners, had been doing business at Williamston for a number of years. They dealt in wheat and other grains, had a gristmill, sawmill, and lumber yard, and had a farm of 64 acres. Stanhope Fleming died in 1876. After his death his widow and heirs seem to have retained their interest in the business, and were represented by Robert Fleming and John Fleming. In February, 1884, the firm was largely indebted to defendant and others, and Mead transferred his interest to plaintiff. The only consideration for the transfer was the agreement on the part of Grimes to save him (Mead) from liability. Plaintiff at this time had a large farm, and it is conceded that he was worth at least $30,000. At the time of the transfer, and the preparation of the new articles of copartnership between Grimes and the Flemings, the defendant was present, and was conversant with the circumstances attending the transfer. He had, with other creditors, signed an agreement to take paper at five years for his unsecured claim, which amounted to between five and six thousand dollars, and notes were accordingly executed, one to defendant for $5,675.31. The agreement was not signed by all of the creditors, and during the year that followed a number of claims against the firm had matured, and were being pressed for payment. In March 1885, plaintiff went to defendant, and tried to negotiate a loan upon the firm property, in order to liquidate this matured indebtedness. Defendant declined, but understood subsequently that the firm was negotiating with others for this loan, and learned, finally, that Herdman & Corey, of Stanton, who were also large creditors of the firm, had agreed to take mortgages upon the firm real estate and personal property for $18,500, deduct the amount due themselves pay a mortgage amounting to $1,700 held by defendant, and Grimes and Fleming were to have the balance in cash. Plaintiff was serving upon the jury in the United States court at Detroit, but joined in the execution of the mortgages, and left them with Robert Fleming to close up the deal with Herdman & Corey. On March 30th Q. A. Smith, acting as Bowerman's attorney, and Robert Fleming, went on the same train to Mason, where the deal was consummated. Smith had with him the discharge of the mortgage, and the five-year note given by Grimes and Fleming to Bowerman. Herdman & Corey deducted from the amount of the mortgage the amount due them paid the Bowerman mortgage to Smith, and turned over to Robert Fleming the balance, amounting to $9,000. Smith surrendered to Robert Fleming the five-year note executed to Bowerman, and Fleming gave a new note for the amount of the old note, and the interest which together amounted to $6,159.68. Smith telephoned for Bowerman, and, on the 31st of March, Bowerman commenced suit by attachment against Grimes & Fleming, levying upon, not only the firm property, but also the real property of plaintiff, and upon all of his personal property as well. The affidavit upon which the writ was issued set forth that the firm had assigned, disposed of, and concealed their property with intent to defraud their creditors, and that each of the members had assigned, etc., with like intent. As a result of this attachment, some six or seven other attachments were sued out, and Herdman & Corey took possession under their chattel mortgage. In consequence, the credit of the firm was destroyed, the business broken up, plaintiff's credit was impaired, and his individual estate swallowed up in the payment of the firm obligations. The declaration alleges that the suing out of the writ was malicious, and that the allegations contained in the affidavit were false. The case made by the plaintiff was that the Flemings were irresponsible; that plaintiff had been induced to take hold of the business under a promise of indulgence, made by defendant with others; that his purpose in giving these mortgages was a legitimate and honest purpose, and that defendant knew why it was done; that defendant conspired with Robert Fleming to enable Bowerman to make the attachment and injure plaintiff; that, at the time of the exchange of notes, Robert Fleming had $9,000 in cash of the firm's money in his pocket; that defendant knew that fact; that no demand was made upon Fleming for the payment of the note, although defendant knew that the money had been raised for the express purpose of the payment of the firm obligations; that the other attachments and the taking possession by Herdman & Corey under their mortgages were the natural results of defendant's act; that whereas the assets of the firm were sufficient, if plaintiff had been allowed the promised indulgence, and had been permitted to carry on the business to enable plaintiff to have paid the firm indebtedness, but that, in consequence of defendant's act, the credit of the firm had been destroyed, so that it could be no longer used to that end, the assets of the firm had been depreciated, and the burden of the defense of these proceedings, and the payment of the debts of the firm, had been thrown upon plaintiff, and a large amount of his individual property had been absorbed, and his individual credit destroyed. The record furnishes abundant testimony to support this contention, and plaintiff has a verdict for $4,500.

It is claimed that the injury, if any, was to the firm business and credit, and that the action should have been brought in the firm name. Plaintiff set up that the act done was by collusion between Robert Fleming and defendant, and that the effect was a personal and special injury to plaintiff. While it is true that a partnership interest is an entire interest yet a partnership has no such separate or ideal existence as will enable a recovery to be laid in the firm name in an action sounding in tort for a wrong...