Kock v. Bostwick

• Decision Date: 28 May 1897
• Court: Michigan Supreme Court
• Parties: KOCK v. BOSTWICK.

71 N.W. 473

113 Mich. 302

KOCK v. BOSTWICK.

Supreme Court of Michigan

May 28, 1897

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Replevin by Jacob Kock against Noble Bostwick. Judgment for plaintiff and defendant brings error. Affirmed.

Bowen, Douglas & Whiting (Henry B. Graves, of counsel), for appellant.

Thomas Hislop (Barbour & Rexford and Hoyt Post, of counsel), for appellee.

LONG C.J.

This is an action of replevin, brought by the plaintiff, claiming as chattel mortgagee, against the defendant, a constable of the city of Detroit, who seized the goods and chattels covered by the mortgage in hostility thereto by virtue of a writ of attachment issued out of justice court at the suit of a creditor of the mortgagor. The American Brass & Metal Works was a mercantile and manufacturing corporation organized under the laws of the state, with an authorized capital of $50,000, of which $34,230 was paid in. The plaintiff in this case, Jacob Kock, was its president, and owned a large amount of fully paid up capital stock. The corporation, on April 6 1896, had assets, consisting of machinery, stock, and book accounts, which some time previously had been inventoried in the neighborhood of $60,000. On this date the corporation was indebted to the amount of about $42,000, made up as follows About $20,225, borrowed of the Citizens' Savings Bank of Detroit, upon notes of the corporation, indorsed by the plaintiff as an accommodation; about $7,000 of customers' paper, discounted by the corporation, and indorsed by the plaintiff as an accommodation; about $4,000 borrowed directly by the corporation from the plaintiff; about $11,000 of merchandise indebtedness. On April 6, 1896, also, the plaintiff owed his brother, Henry Kock, $2,000 for borrowed money. On April 6, 1896, at the instance of the plaintiff and others, an emergency meeting of the board of directors of the corporation was called, which meeting the president attended and almost the only business transacted was the authorization and direction by the board that the plaintiff, as president should be secured by chattel mortgage for the amount of book accounts and all indorsed notes held by the Citizens' Savings Bank and otherwise, and that the corporation should purchase from Henry Kock 1,578 shares of its own stock for the sum of $15,500, and pay for the same by giving him the note of the corporation secured by a chattel mortgage upon its property. At the same time, Jacob Kock, the president, transferred 1,578 shares of his own stock to Henry Kock, who took it in payment for the $2,000 debt owed by the former to the latter, and thereupon, at the same time, the old certificates of stock were surrendered, and a new certificate issued on the books of the company for 1,578 shares to Henry Kock. On April 18, 1896, in pursuance of the order of the board of directors made on April 6th, two chattel mortgages were executed by the president and secretary in the name of the corporation,-the first, for the sum of $31,100, to the president himself, to secure the indebtedness and liability recited above; and the other, subject to the first, to Henry Kock, for $15,500, to pay for the stock bought of him by the corporation. These mortgages were placed on record April 20, 1896, and the president and plaintiff in this case took possession under the first mortgage, running to him. On May 21, 1896, Maurice Well commenced suit by attachment in justice court for a $500 merchandise claim against the American Brass & Metal Works; and the defendant, a constable, seized about $1,100 worth of metal belonging to the corporation, in hostility to the two mortgages. On May 23d the corporation executed a third chattel mortgage for $30,225 to the Citizens' Savings Bank of Detroit, securing the same notes for the indorsement of which the plaintiff was secured in the...