Holmes v. Hall

• Decision Date: 11 April 1860
• Citation: 8 Mich. 66
• Court: Michigan Supreme Court
• Parties: Charles A. Holmes v. Frederick Hall and another

8 Mich. 66

Charles A. Holmes v. Frederick Hall and another

Supreme Court of Michigan

April 11, 1860

Heard April 5, 1860 [Syllabus Material]

Error to Shiawassee circuit, to which the cause had been transferred by stipulation from Ionia.

The action was trespass, for the taking by defendants in error of certain personal property which plaintiff claimed to have taken, and to be entitled to hold, as sheriff of Ionia county, by virtue of several writs of attachment to him directed and delivered, against the goods, etc., of Hiram T Barstow, and Henry A. Nash, tested in April and May, 1857.

The defendants justified taking the goods under an instrument of which the following is a copy, and which was signed by Barstow and Nash.

"Whereas Frederick Hall and Stephen F. Page have signed with us, for our benefit, two certain promissory notes of $ 1,738.14 each with interest, said notes bearing date February 4th, 1854, and payable one in fourteen months and one in eighteen months from the date thereof, to Louis S. Lovell, administrator on the estate of John C. Ball, deceased, or order. Now, to save the said Frederick Hall, and Stephen F. Page, harmless from the payment of said notes or any part thereof, we hereby agree with said Hall and Page, to pay each of said notes within thirty days from this date, and in default thereof, we hereby authorize said Hall and Page, or their certain agent or attorneys, to take immediate possession of all the goods, wares and merchandise, lumber and shingles, and the personal property, now in our possession and belonging to us, now in and about the store and premises in the village of Ionia, county seat of Ionia county, Michigan, occupied by us as merchants under name and firm of Barstow & Nash, and all notes and accounts, and account books, belonging to us as merchants aforesaid, and the buildings and premises which we may be doing business in, in selling goods, and authorize them out of such property, so taken possession of, to sell so much thereof as will pay the above described notes, and them a reasonable compensation for their services in selling the same, and the balance to redeliver to us." Which paper was dated February 23d, 1857.

It appeared on the trial, that on February 4th, 1854, Barstow & Nash purchased of said Lovell, administrator as aforesaid, a stock of goods, for the purchase price of which they gave four promissory notes, signed by themselves, with defendants as sureties, for $ 1,738.14 each, and that to indemnify defendants for signing said notes, Barstow & Nash gave them security upon such stock of goods in a writing, of which the one above copied is an exact copy, except the date and number of notes described, and also a bond and mortgage on real estate in Ionia; that Barstow & Nash were not indebted at the time, except for said purchase; that on February 23d, 1857, there remained unpaid the two last of the said notes, except the interest, and the said security to defendants was supposed to have expired and become of no effect as to creditors, and for that reason, the instrument under which defendants justify was given to indemnify said defendants for their remaining liability; that at the time of the taking of the goods by the defendants from the plaintiff, one of said last two notes had been taken up by Barstow & Nash, and there was unpaid on the other $ 1,742.

Plaintiff, in reply, proved that defendants never had possession of the goods, etc., under the last mentioned writing, until they took them from plaintiff's possession after the attachments, and that the demands of the several attachment creditors against Barstow & Nash accrued before February 23d, 1857.

The circuit judge charged the jury that the said writing, given by Barstow & Nash to defendants, was a mortgage, and, as such, good and effectual against the creditors of Barstow & Nash, without actual...