Perrott v. Shearer

• Decision Date: 28 April 1868
• Citation: 17 Mich. 48
• Court: Michigan Supreme Court
• Parties: Patrick J. Perrott v. James Shearer

17 Mich. 48

Patrick J. Perrott v. James Shearer

Supreme Court of Michigan

April 28, 1868

Heard April 24, 1868 [Syllabus Material] [Syllabus Material]

Error to Bay circuit.

This was an action of trespass against the defendant, plaintiff in error, for seizing and taking certain goods of the plaintiff defendant in error.

The defendant below pleaded the general issue, and gave notice that the property seized was in possession of one Henry H. Swinscoe; that defendant, at said time, was sheriff of Bay county; that on the 24th day of July, 1865, a writ of attachment was issued out of the Bay county circuit court, against the goods and chattels of said Swinscoe, and that he seized and took the property mentioned, if at all, bye virtue of said attachment, etc.

The cause was tried by a jury.

Henry H. Swinscoe and George E. Swinscoe, his son, were copartners doing business in Bay City. Some time in June, 1865, George E. Swinscoe went to Chicago, in the state of Illinois, to reside, Henry H. Swinscoe still remaining in Bay City, doing business under the firm name of Swinscoe & Son. The firm being in embarrassed circumstances, on the 24th day of July, 1865, an assignment for the benefit of the creditors of the firm was made to James Shearer, of Bay City. The assignment was executed by Henry H. Swinscoe, and also by George E. Swinscoe, by his agent, Henry H. Swinscoe. On the same day Mr. Shearer took possession of the property assigned, and commenced taking an inventory of the property. On the same day, viz., the 24the day of July, an attachment was issued out of the circuit court for Bay county in favor of Beatty & Fitzsimons, of Detroit, and against Henry H. Swinscoe and John McDermott as defendants, and delivered to the plaintiff in error, who was then sheriff of by county, commanding him to seize, etc., the goods of Henry H. Swinscoe; and on the 25th day of July, 1865, as appeared from the return of the plaintiff in error as sheriff, he seized the goods in question by virtue of said writ.

The goods were destroyed by fire, while in possession of plaintiff in error as such officer, on the 8th day of October, 1865; but the said Shearer holding a policy of insurance thereon, collected the amount so insured.

Judgment was rendered for the full value of the goods.

The rulings of the court are stated in the opinion.

Judgment affirmed, with costs.

Webber & Smith, for plaintiff in error:

1. On the trial, the defendant below offered to prove that the plaintiff claimed to be the owner of the goods at the time of the fire, and that he had received on that claim from the insurance companies the full value of the goods. This was clearly admissible in mitigation of damages. Admitting all that the plaintiff claimed, that he was entitled to the goods at the time of the levy, and that the sheriff was a wrong-doer in seizing them as the property of Swinscoe, yet the taking of them did not divest the plaintiff of his ownership. He might bring replevin for them at any time, and thus recover the goods with damages for detention. If the sheriff became convinced that he had no right to hold them, he could offer to restore them to the plaintiff, who might accept them if he saw fit to do so, and who would then only have his action for damages for the taking, but not for the value. By claiming his ownership to continue and to exist at the time of the fire, and by receiving from the insurance companies the value of the goods, it is as though he had at the time of the fire received back his goods from the hands of the sheriff; or it is as though he had on that day repossessed himself of his goods by replevin.

Shearer's possession under the assignment was taken on the 24th of July, and the levy was on the next day. There is no element in the case which can be assigned as a reason for punishing the defendant by making him pay more than the damage sustained, nor for rewarding the plaintiff by allowing him a double value for the goods.

Only one of the parties had an insurable interest in the goods, and that was the owner. If Mr.Shearer was the owner, and had his interest as such protected by insurance, then the goods were his, the loss by fire was his loss, for which the insurance compensates him, and he can only recover from the defendant damages accrued to that time, not including the value of the goods.

2. The record discloses the fact that this property was the property of Swinscoe & Son. That one of the firm assumed, in the absence of the other, to make a general assignment with preferences which was not ratified, assented to or approved by the other partner, so far as shown.

This was a part of the plaintiff's case. It was essential to his title. His only right was under this assignment. If this was void, he had no right in the property, and the sheriff with his writ, was entitled to seize the goods. The execution of this assignment was not even made in the firm name. It was signed by the debtor against whom the attachments were issued (on the same day he signed it), in his own name, and also with the name of his partner; he assuming to act as his attorney, but no authority is shown to act as such; against creditors this was essential. On this point we cite 1 Hoff. Ch., 511; Har. Ch., 172; 1 Doug. 477; 1 E. D. Smith, 341; 3 Sand. S. C., 284, 296; 5 Mo. 463; 6 Id. 317; 17 Vt. 390; 5 Paige 30; 3 Watts and Sergt., 454; Coll. on. Part., 395; Story on Part., § 101; Burrill on Ass'gts, pp. 36-55.

We do not find any case where an assignment with preferences, executed by one partner without the knowledge or approval of the other, has been upheld. It was void as to the absent partner, void as to creditors, and void in toto: Har. Ch., 172; 1 Doug. 477; 2 Mich. 445.

Marston & Hatch, and A. B. Maynard, for defendant in error:

1. The collection of the insurance policy by the plaintiff below is not inconsistent with his right to recover against the sheriff for the illegal taking. In the one case, it is a recovery from the insurance company upon the contract of insurance: 7 Cush. 1; 2 Gray 216. In the other it is a recovery against a wrong-doer, for his tort.

If the defendant had restored the goods to the plaintiff, and the plaintiff had accepted them, that fact might be shown in mitigation of damages; but it would not justify the tort nor absolve the tort feasor from the legal consequences of his wrongful act: 3 Zabriskie 347.

Where one of the partners is absent from the country at the time of making an assignment, and the firm is insolvent, the resident partner can make an assignment of the property for the benefit of creditors: Pars. on Part., 165-6, and note; 1 Brock. 456; 1 Doug. 488, 499; 5 Cranch 289; 4 Day 428; 4 McCord's Law, 519; 3 Paige 523; 8 Leigh 4 Va., 515; Watts (Pa.), 22; 6 Watts & Sergt., 300.

The assignment was signed by George E. Swinscoe, by his agent Henry H. Swinscoe. No objection was made to the reading of the same on the trial, because the authority of the agent to sign the principal's name was not shown, and defendants could not for the first time raise the objection on final argument.

By allowing the assignment to be read without objection they waived the question as to Swinscoe's authority to act as agent for his son: 8 Mich. 350; 5 Pick. 219; 4 Mass. 254; 13 Conn. 155; 8 N. H., 338; 10 Id. 167; 12 Id.

Cooley, Ch. J. Campbell and Graves, JJ. concurred. Christiancy, J. did not sit.

OPINION

Cooley, Ch. J.:

The plaintiff in error, as sheriff of the county of Bay, by virtue of a writ of attachment against the goods and chattels of Henry H. Swinscoe, levied upon a stock of goods, which Shearer claimed as assignee of the firm of Swinscoe &amp Son, composed of said Henry H. Swinscoe and George E. Swinscoe. On the trial, the assignment was offered in evidence, and it appeared to be a general assignment from Henry H. and George E. Swinscoe, constituting Shearer trustee for the benefit of their creditors, and preferring the claims of certain of those creditors, to others. The assignment was executed by Henry H. Swinscoe, in his own name, and that of George E. Swinscoe was signed thereto by Henry H. Swinscoe, purporting to act as his attorney. It appeared that, at the time of its execution, George E. Swinscoe was at Chicago, Illinois, and had been for about three or four weeks, and no evidence was given to show that he assented to or approved of the assignment, before or afterwards, or that Henry H. Swinscoe had any express authority from him to execute it. Nevertheless the assignment was allowed to be read in...