Miller v. Miller

• Decision Date: 13 October 1893
• Citation: 97 Mich. 151,56 N.W. 348
• Court: Michigan Supreme Court
• Parties: MILLER v. MILLER.

56 N.W. 348

97 Mich. 151

MILLER v. MILLER.

Supreme Court of Michigan

October 13, 1893

Error to circuit court, Chippewa county; Joseph H. Steere, Judge.

Action of trover by Matilda Miller against John Miller to recover the value of a team of horses and certain household furniture. There was a judgment entered on the verdict of a jury in favor of plaintiff, and defendant brings error. Reversed.

J. W. McMahon, for appellant.

Lawrence F. Bedford, (E. S. B. Sutton, of counsel,) for appellee.

GRANT, J., (after stating the facts.)

The only question presented by defendant's counsel is upon the correctness of the instruction as applied to the horses, and in this respect we think it was erroneous. Under the ninth subdivision of How. St. � 7686, the husband has the clear right to sell, mortgage, or dispose of, in any way he chooses, the property enumerated in the eighth subdivision, without the consent of his wife. If plaintiff's husband had abandoned the principal business in which he was engaged, the horses were not then within the exemption of the statute, and she then had no interest in them which would entitle her to maintain an action for their possession or value. In such case possession by the defendant would be a complete defense to the action. The exemption of such property continues while the husband is moving from one place to another to carry on the same business or other business in which he is to be wholly or principally engaged, and when such property is necessary to enable him to carry it on. Where there is evidence tending to support the claim of a party litigant, the case should be submitted on his theory, as well as upon the theory of his opponent. Wildey v. Crane, 69 Mich. 17, 36 N.W. 734. For the failure to instruct the jury as above indicated, the judgment is reversed, and new trial ordered. The other justices concurred.