Kearney v. Clutton

• Decision Date: 16 June 1894
• Citation: 101 Mich. 106,59 N.W. 419
• Court: Michigan Supreme Court
• Parties: KEARNEY v. CLUTTON ET AL.

59 N.W. 419

101 Mich. 106

KEARNEY v. CLUTTON ET AL.

Supreme Court of Michigan

June 16, 1894

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Trover by Elizabeth C. Kearney against Jonathan L. Clutton and others. There was judgment for plaintiff, and defendants bring error. Reversed.

Corliss, Andrus & Leete, Wm. F. Atkinson, and Ronald Kelly, for appellants.

Edward S. Grece (George H. Penniman, of counsel), for appellee.

GRANT J.

This is an action of trover for the conversion of certain household and personal goods. Plaintiff and her husband, on April 24 1890, executed a chattel mortgage to one Cromwell Clutton, to secure the payment of an expressed consideration of $135. Shortly afterwards Mr. Kearney died. After his death, Mrs Kearney executed to another person a second mortgage upon the goods, for the sum of $200. She broke up housekeeping, and stored the goods with the defendants Grace, who carried on a storage and cartage business, under the name of the Fidelity Storage Company. Cromwell Clutton, it appears, lived in Dakota, and defendant Jonathan L. Clutton made the loan, and took the mortgage in his name. Jonathan L. Clutton carried on the business in his brother's name, and had an interest in it. Jonathan L., learning that the goods had been removed from the plaintiff's house, requested an interview with the plaintiff. She informed him where the goods were stored and claims that she then made an agreement with him that proceedings to foreclose the mortgage should be postponed until she had obtained some life insurance which she claimed to be due on a policy upon her husband's life. Defendant Clutton denied this conversation, and testified that plaintiff then informed him that she could not redeem the property. The mortgage was then past due. The defendant Clutton then, in the name of his brother, brought an action of replevin in justice's court against the defendants Grace to recover the property. The writ of replevin was placed in the hands of one William H. Guyott, a constable, for service. He made due return to the writ that he had replevied the goods, and delivered them to the plaintiff, and had made personal service of the writ upon the defendants Grace. The goods were not removed by the constable from the storehouse of the Graces, but, on the day following, defendant Clutton caused them to be removed to the auction room of the defendant Jerome, where, after notice of sale, they were sold by Jerome, who realized upon the sale $82, which he paid over to Clutton, after deducting his commission. A few days after, plaintiff learned of the above proceedings, and related the transactions to some of her friends, who went to Clutton, and exacted from him $65, which he claims was a settlement of the entire transaction, and which was paid over to the plaintiff. She insisted that she did not authorize this settlement, and shortly afterwards instituted this action. She recovered verdict and judgment for $800. The jury returned a verdict of $500 against defendant Clutton, $150 against the defendants Grace, and $150 against Jerome. This verdict was objected to by the plaintiff, and, under the instruction of the court, the jury retired, and brought in a verdict for the whole amount against all the defendants jointly.

1. The verdict and judgment against the defendants Grace cannot be sustained. There is no evidence connecting them with any conversion. The second count in the declaration alleges a conspiracy between the defendants to defraud the plaintiff. There is no evidence tending to show that the defendants Grace had any knowledge of the replevin suit, or of the sale of the goods. The constable, a witness for plaintiff, flatly contradicts his return to the writ, by testifying that he did not take the goods under his writ; that he never saw them; that he made no service upon either of the defendants Grace; that Clutton told him not to take the goods, but to leave them there; and that the only service he made was upon their bookkeeper. If the bookkeeper had handed this writ to his employers, or if it had been properly served upon them, being a valid writ, it would have operated as a complete defense to any action against them. Nor can they be held for conversion from the fact that they did not notify the plaintiff that the goods had been so seized, but, as already shown, plaintiff failed to bring any knowledge of the transaction home to them. If there was any evidence of collusion and conspiracy, it was between Clutton, the constable, and the bookkeeper, the only parties shown to have had any connection with the replevin suit.

2. In regard to the liability of defendant Jerome, a more difficult question is presented. There is no evidence that he acted in bad faith or in collusion with Clutton. Clutton took the goods to his auction rooms, to be sold by him as agent and auctioneer, under the foreclosure sale, a copy of which was posted in Jerome's window. It is argued on behalf of plaintiff that Jerome is liable, though acting in good faith if the taking by Clutton was tortious. It is sought to place Jerome in the position of an officer who seizes and sells property under a writ. An officer acting under his writ is liable beyond question when he seizes property under a void execution, or the property of a stranger under a valid execution. The law considers such officer as the moving party. He is the only one authorized to make a levy and sale. He acts at his peril. Counsel cite Cooley, Torts, (2d Ed.) 528: "One who buys property must, at his peril, ascertain the ownership; and, if he buys of one who has no authority to sell, his taking possession, in denial of the owner's right, is a conversion. The vendor is equally liable, whether he sells the property as his own or as officer or agent; and so is the party for whom he acts, if he assists in or advises the sale." The learned author cites the following authorities in support of the text: Billiter v. Young, 6 El. & Bl. 1; Cooper v. Chitty, 1 Burrows, 23; Garland v. Carlisle, 4 Clark & F. 693; Moore v. Eldred, 42 Vt. 13; Calkins v. Lockwood, 17 Conn. 155; Smith v. Colby, 67 Me. 169. An examination of these authorities discloses that none of them involve the liability of an agent or auctioneer who merely sells the property for another when brought to him for that purpose. In Billiter v. Young the defendant was not the sheriff, but plaintiff in the execution under which the sheriff, by his...