J. L. Hudson Co. v. Barnett

• Court: Michigan Supreme Court
• Writing for the Court: BUTZEL
• Citation: J. L. Hudson Co. v. Barnett, 255 Mich. 465, 238 N.W. 243 (Mich. 1931)
• Decision Date: 05 October 1931
• Docket Number: No. 134.,134.
• Parties: J. L. HUDSON CO. v. BARNETT.

255 Mich. 465

238 N.W. 243

J. L. HUDSON CO.

v.BARNETT.

No. 134.

Supreme Court of Michigan.

Oct. 5, 1931.

Appeal from Circuit Court, Wayne County; Vincent M. Brennan, Judge.

Action by J. L. Hudson Company against Louis Barnett for replevin, in which the Detroit Fidelity & Surety Company, as surety on the replevin bond, intervened. Judgment for plaintiff, and defendant and intervener appeal.

Affirmed.

Argued before the Entire Bench.Monaghan, Crowley, Reilley & Kellogg, of Detroit, for appellant Detroit Fidelity & Surety Co.

Samuel J. Rhodes, of Detroit (Edward T. Kelley, of Detroit, of counsel), for appellant Barnett.

Bernard A. Clark, of Detroit, for appellee.

BUTZEL, C. J.

J. L. Hudson Company, a Michigan corporation, plaintiff herein, sold to Louis Barnett, defendant, carpets for an apartment house. The parties entered into a title retention contract, the price of the property being fixed at $8,005.89, of which approximately one-fourth was to be paid in cash and the balance in equal monthly installments of $332.06 over a period of 18 months. There was included in the purchase price the sum of $376.48 for drilling holes to fasten the carpets to the floor, and $36.46 for insurance. After Barnett paid $2,486.24 on the purchase price and reduced the balance due to $5,526.26, he defaulted in his payments, and plaintiff brought replevin proceedings. To retain possession of the carpets, Barnett executed a replevin bond, with the Detroit Fidelity & Surety Company, defendant, as surety in the amount of $7,100, twice the amount of the appraised value of the carpets.

At the trial of the case prior to the present one, upon the close of plaintiff's testimony, defendant moved for a directed verdict, claiming that a sufficient demand for the return of the property had not been made. Thereupon, the trial judge indicated that he would direct a verdict in defendant's favor. A colloquy between counsel then took place, but it was not recorded by the court stenographer. Defendant's attorney claims that he stated that if plaintiff took back the property, it could obtain between $4,000 and $4,500 from the trustee under the mortgage. Under the circumstances, a judgment was taken, without any contest, in favor of plaintiff for the return of the carpets.

Within proper time, plaintiff made a motion for a new trial and it was granted. On the second trial, at the close of plaintiff's case, defendant again moved for a directed verdict. This was denied. The question of demand was one of the questions determined by the jury. Plaintiff waived the return of the property, and the jury rendered a verdict in its favor against defendant in the sum of $6,350, approximately the balance due with interest on the contract. The evidence in the record with respect to the value of the goods at the time they were replevied is meager, and consists of contract showing the balance due, the sheriff's appraisal of the property at $3,550, and the fact that the goods were delivered between April 26, 1926, and November 13, 1926, so that they were in defendant's possession from four to eleven months, or an average of 7 1/2 months prior to the demand for their return. Defendant Detroit Fidelity & Surety Company, surety on the bond, has intervened.

Error is claimed, and particularly stressed by the surety, that the judgment for the return of the goods in the first trial fixed the liability of the surety company; that plaintiff at that time made an election which it could not later repudiate; that the court had no right to set aside a judgment and grant a new trial on plaintiff's claim that it consented to such judgment on account of an erroneous apprehension of the facts and law. Plaintiff's counsel was forced into the position of taking a judgment for the return of the goods by the statement of the trial judge of his intention otherwise to direct a verdict against it. The rule in this state is that the judge has a wide discretion in either granting or refusing a new trial, either upon his own motion or that of the parties. Reynolds v. Newaygo Circuit Judge, 109 Mich. 403, 67 N. W. 529;Zeilman v. Fry, 213 Mich. 504, 510, 182 N. W. 41;Decker v. Fair, 222 Mich. 507, 509, 193 N. W. 288;Barden v. A. Heller Sawdust Co., 240 Mich. 549, 552, 215 N. W. 364. A judgment brought about by coercion is not one by consent. The court has the power to open or vacate a judgment upon good cause shown whether entered into by consent or not. The power of the court is discretionary and there was no abuse of discretion in the case at bar. Alspaugh v. Ionia Circuit Judge, 126 Mich. 67, 85 N. W. 244;Stockley v. Stockley, 93 Mich. 307, 313, 53 N. W. 523.

Defendant surety company further claims that defendant's liability became fixed upon the rendition of the first judgment and could not be thereafter changed or enlarged, and under no circumstances without special notice to the surety company. The latter was first joined as party defendant after the rendition of the second judgment against Barnett, and was not entitled to any notice until it became a party to the suit. A surety on a replevin bond is not a party to an action in...