Morgan v. Hodges

• Citation: 89 Mich. 404,50 N.W. 876
• Court: Michigan Supreme Court
• Decision Date: 22 December 1891
• Parties: MORGAN v. HODGES et al.

50 N.W. 876

89 Mich. 404

MORGAN v. HODGES et al.

Supreme Court of Michigan

December 22, 1891

Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.

Trover and conversion by Birney J. Morgan against James L. Hodges et al. Judgment for defendants, and plaintiff brings error. Reversed.

Reuben Hatch, for appellant.

Fletcher & Wanty, for appellees.

GRANT, J.

This is an action of trover to recover the value of a horse. In November, 1888, defendants purchased two horses, harness buggy, robes, and whip of one Seaman. Seaman had hired one of the horses, harness, and the other property from plaintiff at Traverse City, to drive to Frankfort. He drove them to Grand Rapids, and sold them to the defendants. Defendants had known Seaman, and had no occasion to doubt his statement that he owned the property. No question is raised of the good faith of the defendants. In the following March plaintiff traced his property into the possession of the defendants. They had sold the horses, but still had the other property. The defendants pleaded the general issue, and gave notice of a settlement. The only question arises upon this settlement. The settlement was denied by the plaintiff, but to properly present the question the testimony of the defendants alone is material. Plaintiff, who was a stranger to defendants, went to their stable, and, finding Frank E. Hodges there, informed him of the loss of this property, and asked if they had bought such property of Mr. Seaman. Mr. Hodges informed him that they had bought two horses, harness, buggy, and robes of Mr. Seaman; that they had sold the horses; and that the other property was in his brother's barn. Mr. Hodges went with plaintiff to see the property. Plaintiff recognized it as his. Plaintiff and Frank went back to defendant's barn and found defendant Chester there. Frank introduced plaintiff to his brother, and told him of his claim. A conversation ensued between them, in which plaintiff stated how Mr. Seaman obtained the property, and Mr. Hodges stated how they came in possession of it, and what they had done with it. Mr. Hodges testifies that plaintiff then said "If you will return me the buggy, robe, harness, and things, I will let the horses go, and we will call it square. You got them in good faith." To which Mr. Hodges replied, "All right," and immediately telephoned to his employes at the other barn to let plaintiff have the property. He took the property away, and subsequently brought this suit. It is urged on behalf of plaintiff that, even if this arrangement were made, it was void for want of consideration, because there was nothing in dispute, and no controversy had arisen. The learned circuit judge instructed the jury that, if this were so, and if the defendants conceded at the outset that the property belonged to the plaintiff, then there was no...