Hatch v. Fowler
| Decision Date | 21 October 1873 |
| Citation | 28 Mich. 205 |
| Court | Michigan Supreme Court |
| Parties | Alonzo S. Hatch v. Eldridge M. Fowler and another |
Heard October 16, 1873
Error to Lapeer Circuit.
Replevin. Defendant brings error. Reversed.
Judgment reversed, with costs, and a new trial awarded.
Gaskill & Geer and A. C. Baldwin, for plaintiff in error.
M. E Crofoot, for defendants in error.
Fowler and Kelsey replevied from Hatch a quantity of lumber which he, as sheriff of Lapeer county, had levied upon by virtue of a writ of attachment against one Doyle. The levy was made at Imlay City, but the lumber was not removed, nor was any one left by the sheriff in charge of it. The sheriff duly endorsed the levy on his writ, and claimed afterwards to hold the property by virtue of it, and refused to give it up on demand by plaintiffs' agent. It was conceded that the lumber belonged originally to Doyle, and had been manufactured by him at Burlington, some eighteen miles from the place where the attachment was served. Plaintiffs claimed to have bought the lumber of Doyle, and the defense was that if any such purchase was ever negotiated it had never been perfected, so as to pass the title, and even if it had been, so as to be valid and complete as between the parties, it was presumptively fraudulent as to the creditors of Doyle, and therefore prima facie void as against the writ in the hands of Hatch as sheriff.
To prove their title, Fowler, one of the plaintiffs, took the stand as a witness, and testified that in August, 1870, he was acquainted with Doyle, and went from Bay City with Kelsey to see him on the 16th of that month. Doyle had some lumber sawed, and a stock of logs in his mill to saw at that time. Plaintiffs made with him a written contract for the purchase of a certain amount of lumber. The written contract was then produced and identified, but it being attested by a subscribing witness who was not produced, it was not received in evidence. Fowler then proceeded to say that plaintiffs paid Doyle five hundred dollars at that time. He was then asked whether they subsequently made any payment to Doyle on the lumber. The question was objected to, but allowed, and subject to objection the witness proceeded to say that afterwards, in September, they paid upon the contract five hundred dollars more, and in December seven hundred and seventy-five dollars more. Mr. Doyle sent his brother, William H. Doyle, to see witness at Bay City, with a request that witness would give him some money there, or go to Burlington and pay him. The seven hundred and seventy-five dollars was paid by a Mr. Carney. Witness engaged Mr. Carney to go to the mill in consequence of information through Wm. H. Doyle that there was lumber there, sawn on the contract, and ready for delivery. The direction to Carney was to estimate the lumber cut and called uppers, and pay Doyle ten dollars a thousand on the estimate. Witness told Carney he was not particular; if Doyle needed the money he might pay him a little more. Told him to estimate it and take a delivery. This was 20th or 21st December, 1870. Plaintiffs were next at the mill the first day of February following. The lumber had then been removed to Imlay City. They then paid Doyle five hundred dollars. Learning that the lumber had been attached, plaintiffs sued out a writ of replevin, and witness went with the officer when he served it. Found the lumber piled up in a close pile. After making the contract one Sleeper was agreed upon to make inspection, which he did. The parties never made but one contract. All the payments were made under the written contract. It was provided in the written contract that plaintiffs should make Doyle payments according to certain conditions.
Doyle was also sworn as a witness, and stated, among other things, that when Carney came to the mill witness pointed out the lumber to him, and he took possession of it for plaintiffs. Witness afterwards landed the lumber at Imlay City. This was done in December, January and February. By the terms of the contract witness was to take the lumber to Imlay City. There was to be a final settlement after the inspection. Witness did not know that any inspection had been had. At the time it was delivered to Carney it was in the pile in the yard. Witness had control over it until it was drawn, and over the drawing of it. When it was drawn, some of it was left by the way.
Carney testified that when he went up to the mill for plaintiffs he had the written contract with him. Witness went and estimated the several piles of lumber, and Doyle told him he gave the delivery of it. Witness took the delivery for plaintiffs. Eight piles were estimated, but no marks put on the lumber; simply went out and estimated. When witness left, he left the lumber in charge of Doyle for plaintiffs; it was in Doyle's possession before. Witness estimated by counting the courses. Did not look at the lumber to separate it into different qualities; only saw the ends of the piles. Did not inspect the lumber at all; understood it was to be paid for and settled for as to the quality and quantity both.
Kelsey, the other plaintiff, testified that the lumber received at Imlay City, as subsequently scaled by Sleeper, came to one thousand nine hundred and nineteen dollars and twenty-three cents. They had paid Doyle two thousand two hundred and seventy-five dollars. The amount by the scale bill was 89,094 feet. Other evidence showed that the estimated amount at the mill was 160,000. No showing was made as to what had become of the deficiency.
The foregoing is a sufficient statement of the substance of the testimony to present the legal points.
The first question we shall consider is, whether plaintiffs were at liberty to make oral proof of the purchase they claimed to have made, when it was conceded that the contract was in writing. The plaintiffs, in the discussion of this question, have made the following points:
First. That the action is purely a possessory action.
Second. That as the plaintiffs claim title from Doyle, the specific terms whereby they acquire title are material only to the parties to the contract, to wit: Doyle, Fowler and Kelsey.
Third. That Hatch is a stranger to the contract, and has no right to inquire into its terms, except so far as they affect the rights of creditors whom he represents.
Fourth. That until Hatch had entered upon his defense, and shown that he represented creditors, proof of a sale which could only be avoided by creditors would be immaterial and...
To continue reading
Request your trial
-
H.M. Tyler Lumber Co. v. Charlton
...in a state in which they may be and ought to be accepted. This case has been referred to with approval in the subsequent cases of Hatch v. Fowler, 28 Mich. 205; Hahn Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Wilkinson v. Holiday, 33 Mich. 386; Grant v. Bank, 35 Mich. 515; Scotten v. Sutter......
-
Byles v. Colier
...in a state in which they may be and ought to be accepted. This case has been referred to with approval in the subsequent cases of Hatch v. Fowler, 28 Mich. 205; Hahn Fredericks, 30 Mich. 223; Wilkinson v. Holliday, 33 Mich. 386; Grant v. Merchants', etc., Bank, 35 Mich. 515; Scotten v. Sutt......
-
Crane v. Waldron
... ... Brooks (Mich.) 85 N.W. 1085; Molitor v ... Robinson, 40 Mich. 200; Buhl Iron Works v ... Teuton, 67 Mich. 623, 35 N.W. 804; Hatch v ... Fowler, 28 Mich. 205; Webster v. Bailey, 40 ... Mich. 641; Cooper v. Brock, 41 Mich. 488, 2 N.W ... [94 N.W. 594] Kipp v. Lamoreaux, ... ...
-
Sandler v. Bresnaham
...and the quantity agreed upon or ascertained. Adams Mining Co. v. Senter, 26 Mich. 73; Lingham v. Eggleston, 27 Mich. 324; Hatch v. Fowler, 28 Mich. 205; v. Fredericks, 30 Mich. 223; Wilkinson v. Holiday, 33 Mich. 386; Grant v. Merchants', etc., Bank, 35 Mich. 515; Scotlen v. Sutler, 37 Mich......