Harvey v. McAdams
| Decision Date | 19 October 1875 |
| Citation | 32 Mich. 472 |
| Court | Michigan Supreme Court |
| Parties | Joseph J. Harvey and others v. Alexander McAdams and another. [1] |
Heard October 7, 1875; October 8, 1875 [Syllabus Material]
Error to Saginaw Circuit.
This was trover brought by defendants in error for the conversion of two horses, two log-chains and a set of harness. The plaintiffs below claimed title under chattel mortgages from one Melrose, covering the property in question and other property. The conversion complained of consisted in the levy of a justice's execution in favor of defendants Harvey & Coleman, and against Melrose, by defendant Babcock as a deputized constable, and the sale of the chattels in parcels in disregard of the plaintiffs' mortgage interests.
To connect Harvey & Coleman with the acts of Babcock evidence was given tending to show, among other things, that Harvey & Coleman were co-partners, and that about the time of, and prior to this levy, they had a good many suits before the justice who issued the execution; that Harvey had some time before made a general request of said justice to deputize Babcock to serve any process in their favor, and that he was accordingly so deputized previously in several cases, and in some instances, at least, to serve executions.
It appeared also that Coleman knew the property was taken by Babcock on an execution in their favor; that the property was stored and the horses kept in their stable from the time of the seizure until the sale; that they knew of plaintiffs' claim under the mortgages while the goods were in their possession before the sale; and that they were present at the sale and purchased one article.
It was shown that a prior execution on the same judgment had been placed in Babcock's hands as a deputy of the sheriff, and that when he returned that and took out the execution in question he stated to the justice that Harvey & Coleman were going to test the question thoroughly whether plaintiffs could cover up Melrose's property with chattel mortgages.
Harvey & Coleman, it appeared, had two stables, one in charge of Harvey, and the other in charge of Coleman, and Babcock had been in their employ as a hack-driver. On cross-examination of Coleman regarding the employment of Babcock, he stated something to the effect that Babcock's employment was by Harvey, and against his wishes; and thereupon plaintiffs were allowed on further cross-examination, against objection, to elicit the fact that the hack driven by Babcock was kept at the stable of which Coleman had charge.
The trial was by jury, and verdict was rendered for the plaintiffs. Proceedings were stayed for ten days to move for a new trial or in arrest of judgment, and this time was afterwards extended six days, but before that extension expired judgment was rendered on the verdict.
A motion in arrest of judgment and for a perpetual stay of proceedings was made by defendants, on the ground that plaintiffs had assigned their claim after the verdict, and this fact was shown by depositions taken on this motion which were filed in the cause. The motion was heard and denied, and judgment being thereupon entered, defendants brought error.
Judgment affirmed, with costs.
L. T. Durand, for plaintiffs in error.
Wisner & Draper, for defendants in error.
1. The objection to the admission in evidence of the chattel mortgage under which the plaintiffs claimed the property has no force. The ground of it was, that the declaration counted upon a conversion of plaintiff's property without setting out the nature of their interest, and was not calculated to inform the defendants of what they would be expected to meet. But no declaration in trover undertakes to notify the defendant of the precise nature of the plaintiff's title, or what are the evidences of it. Those are matters of evidence merely.
2. We do not perceive that any improper evidence was admitted to show the agency of Babcock for Harvey & Coleman. In deed the evidence on both sides, so far as it is set out in the bill of exceptions, tended to show that he was their agent. Babcock was not an officer, but was deputed to serve the execution in their favor; and though there is a conflict in the evidence regarding their request that he be deputized, there is no dispute whatever that Coleman, at least, knew he was acting for them in the service of that writ. The claim that they repudiated all responsibility for his action, and refused to sanction it, while he had the writ, seems a very transparent pretense, and seems to indicate a purpose on their part to have the benefit of the collection if it succeeded, and to repudiate Babcock's action only in the event of his action...
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