Munzer v. Stern

• Decision Date: 28 May 1895
• Court: Michigan Supreme Court
• Parties: MUNZER ET AL. v. STERN.

63 N.W. 513

105 Mich. 523

MUNZER ET AL. v. STERN.

Supreme Court of Michigan

May 28, 1895

Error to circuit court, Kalamazoo county: George M. Buck, Judge.

Replevin by Rudolph Munzer and another against Henry Stern. Judgment for plaintiffs. Defendant brings error. Reversed.

Howard & Roos and Boudeman & Adams, for appellant.

Osborn Mills & Master, for appellees.

GRANT J. (after stating the facts).

1. The defendant requested the court to direct a verdict for the defendant, for the reason that under the evidence the plaintiffs were fully advised of the circumstances and conditions surrounding the case, and entered into the compromise agreement with full knowledge of the facts. The court instructed the jury that the plaintiffs by this agreement waived every right to bring suit in replevin because of any claim on their part that the goods were fraudulently purchased, and that they could not repudiate the agreement unless they had shown that the plaintiffs or their agents were misled into making such agreement by reason of some fraud practiced by Livingston & Block; and that they must show that some active fraud was perpetrated to induce them to enter into said agreement. We think the instruction was correct. If the jury believed the evidence on the part of the plaintiffs,-which, of course, they did,-they were justified in reaching the conclusion that this compromise agreement was not entered into in good faith by Livingston & Block; that they were then hopelessly insolvent; that they had purchased at a time when business was depressed, nearly five times the usual amount of their purchases; that they did this without intending to pay for them; that they themselves, without the knowledge of their clerks, secretly packed and shipped a large amount of goods to fictitious assignees and that they sold goods at cost less a discount of from 10 to 18 per cent., and that some were shipped in the original packages. There was other evidence upon this point, which it is unnecessary to state. These things were done within a few days after the receipt of the goods. Plaintiffs had the right to assume that this agreement was made with a view to the continuance of their business, whereas the evidence on plaintiffs' part tends strongly to show that they had no such intention. There was evidence to sustain the finding not only that they purchased these goods and others with intent to defraud, but also that they entered into this agreement with intent to retain the goods mentioned therein for the like purpose. In such case the plaintiffs were justified in rescinding the contract and retaking their goods.

2. It was not necessary for the plaintiffs to offer to return the goods obtained by the agreement before bringing replevin for the remainder. Such action would be an idle ceremony, not required by the law. Neither does the law require a party to tender back or surrender that to which he is entitled. Defendants had paid nothing. Their purchase was fraudulent. Both the original purchase and the compromise agreement were...