Koch v. Lyon

• Decision Date: 10 October 1890
• Citation: 46 N.W. 779,82 Mich. 513
• Court: Michigan Supreme Court
• Parties: KOCH et al. v. LYON.

46 N.W. 779

82 Mich. 513

KOCH et al. v. LYON.

Supreme Court of Michigan

October 10, 1890

Error to circuit court, Clinton county; VERNON H. SMITH, Judge.

William H. Castel, for appellants.

Fedewa & Lyon, for appellee.

CAHILL J.

The plaintiffs brought replevin for a bill of goods claimed to have been purchased of them by one Visger, with a fraudulent purpose and intention not to pay for them. After purchasing the goods in September and October, 1887 Visger made an assignment November 3d following, under the statute, for the benefit of his creditors, to the defendant Lyon. On the trial, the plaintiffs satisfied the jury that the goods were obtained by Visger by fraud, and had a verdict in their favor. Defendant brings error.

The main point relied on to reverse the judgment is that the circuit judge charged the jury that no demand was necessary before bringing suit. There was no error in this. Under the case made by the plaintiffs, the defendant's assignor Visger, obtained possession of these goods by fraud. It was not necessary for the plaintiff to demand the goods of him before bringing replevin to recover them. Trudo v. Anderson, 10 Mich. 357; Carl v. McGonigal, 58 Mich. 567, 25 N.W. 516; Adams v. Wood, 51 Mich. 411, 16 N.W. 788.

An assignee takes no better title to the property than the assignor had. If no demand would have been necessary as against Visger before bringing suit, it would not be as against his assignee, who is not a purchaser for value. Brown v. Brabb, 67 Mich. 17, 34 N.W. 403; Farwell v. Hanchett, 120 Ill. 573, 11 N.E. 875. Upon the trial, the plaintiffs were allowed to prove, by several witnesses, conversations had with Visger before and after the assignment, the purpose of which was to show his bad faith generally in the treatment of his creditors. This testimony was objected to, and error is assigned on its admission, on the ground that the conversations were not in the presence of the defendant, Lyon, and that he could not be bound by anything that Visger had said after the assignment. This objection was not well taken when, as in this case, the statements related to matters that occurred before, or contemporaneous with, the assignment. The defendant was in the case only in a representative capacity. The right of the plaintiffs to recover did not depend upon defendant's conduct, but upon the conduct of Visger. It was competent to prove any act or statement of Visger's tending to show a fraudulent purpose on his part in the purchase of the goods. His statements would not necessarily be conclusive on the assignee, but, in the absence of any showing to the contrary, he must be presumed to desire to support his own character for honesty, and any statement which impugned his character would be admissible as declarations or admissions against his interest. It is urged that the admission of such testimony disregards a well-settled rule, that an assignor cannot be allowed, after assignment, to invalidate the title of the assignee by his declarations; but this rule, so far as I have been able to find, is only to be invoked in aid of bona fide assignees for value. Welch v. Mandeville, 1 Wheat. 233; Hough v. Barton, 20 Vt. 458; Dazey v. Mills, 5 Gilman, 67; Hackett v. Martin, 8 Greenl. 77; Frear v. Evertson, 20 Johns. 142. I am not in favor of extending the rule so as to exclude evidence of the statements and admissions of one who has made a general assignment for the benefit of creditors,...