Pinch v. Willard

• Decision Date: 16 January 1896
• Citation: 66 N.W. 42,108 Mich. 204
• Court: Michigan Supreme Court
• Parties: PINCH v. WILLARD.

66 N.W. 42

108 Mich. 204

PINCH v. WILLARD.

Supreme Court of Michigan

January 16, 1896

Error to circuit court, Eaton county; Clement Smith, Judge.

Replevin by Benjamin W. Pinch against Aaron H. Willard. Judgment was rendered for defendant, and plaintiff brings error. Reversed.

Huggett & Smith, for appellant.

Powers & Stine, for appellee.

HOOKER J.

The parties to this action settled accounts upon May 15, 1890 and found the sum of $1,853.48 due from the defendant to the plaintiff. The sum of $1,500 was thereupon paid, leaving a balance of $353.48. It should be added that the defendant claims that this included some usurious items i. e. that such were included in the settlement. The amount of these does not appear. A chattel mortgage covering the property in controversy (excepting the horses) was given to plaintiff at this time. The plaintiff claims, and there was evidence tending to show, that their dealings continued until November 30, 1892, when they ceased, and that there was no statement after May 15, 1890; that, through such dealing, the defendant became indebted to the plaintiff on various other obligations, some of them providing for bonuses of from $5 to $10 per month, in addition to legal interest, and that he paid to plaintiff large sums of money at different times. Upon these transactions the plaintiff claims that a balance was due to him. The defendant was also indebted to one Downs in a large amount, which was secured by a mortgage upon a large number of horses, including those in dispute. On October 18, 1892, the defendant executed and delivered to William J. Hickok a bill of sale, of which the following is a copy: "Olivet, Mich., Oct. 18, '92. I have this day sold to W. J. Hickock twenty-one head of horse stock, mares colts, and fillies, as I may wish to select from my stud of horses. Description of said stock is not given, and only possession of stock is given, and right and title to said stock guarantied to be perfect. Consideration of this sale is one thousand dollars. Received payment of two hundred and fifty dollars as forfeit; balance to be paid in the month of November (next), and said amount $750 to be paid into the hands of James T. Downs or his agent. A. H. Willard." At the same time, Hickok was directed to take $250 from a sum of money in his possession, belonging to the defendant, and pay it to Downs, which Hickok did. It seems to have been contemplated that Hickok should obtain a release from Downs of the property covered by the bill of sale and the record contains evidence that he did so in writing, and Hickok testifies that it was conditioned upon payment of $750 additional during November, 1892. Whether Hickok promised Downs to pay is not shown; and the only evidence of a promise to pay is contained in the bill of sale, which does not bear his signature. Hickok testified that he expected Willard would pay it, and that he never made any payment upon the bill of sale. He testified also that he understood that, if he did pay the $750, the property should be his absolutely. It may be claimed that this was afterwards modified by the statement that "there was no condition by which he was to hold it in the nature of a mortgage or lien upon the horses to secure his debt if he paid the money, unless he saw fit." He does not appear to have claimed any interest in the property, and, in speaking of the bill of sale, says: "I had a paper that claimed to be a bill of sale in my possession." And he says that "it was not my idea that he was to furnish the stock as security for the $750 and the old debt he owed me."

We are unable to find any evidence of payment or promise by Hickok in the record, unless the taking and holding this writing implied one. When we view this in the light of surrounding circumstances, we doubt the intention of the parties to make any contract in relation to the matter, and are more inclined to think that Hickok was accommodating and acting for Willard, as Willard testifies. Hickok says: "I wasn't present when the horses were selected, but from Mr. Downs' conversation afterwards I supposed he understood it. I supposed that they were selected out so that Mr. Downs would know upon what horses the mortgage remained and I supposed Mr. Downs supposed I had bought them. So far as I know, Mr. Downs didn't know but that I had bought them right out from his conversation which I had with him afterwards. I should say this was done at the request of Mr. Willard, and in his interest, and that this arrangement was made with Mr. Willard's request, although I had a little interest. Mr. Willard was owing me a little about sawing, and I was to receive some of my pay. I made this arrangement with him. I attended to this business for him under those circumstances, that I was to receive my pay. I have received it in part. Q. Was there any understanding between you and Mr. Willard that you were to have this stock as security provided you paid the additional $750 mentioned in the bill of sale? Was there any talk about that? A. Not as security, sir. Q. Was there any talk about his securing you for money he then owed you before this paper was made? A. Why, no difference. There was no particular security. Witness: I expected Mr. Willard would furnish the $750 to go to Mr. Downs on or before the 30th day of November. That was the understanding when the paper was made. However, there was a little talk that possibly I might pay it. There was nothing definite in relation to it. It was not my idea that he was to furnish the stock as security for the $750 and the old debt he owed me. I saw the stock on Mr. Deringer's farm. I supposed Mr. Willard paid the pasturage. I did not pay any. Mr. Willard directed me to make the assignment to Mr. Pinch. The horses were not upon my farm anywhere. I furnished them no feed in any way. I don't think there was any agreement between me and Mr. Willard that I was to be owner of the property in any different way from what I have told. I acted under Mr. Willard's direction. In all the transactions I acted largely under his direction. I was not a loser in any way in the matter in case the $250 was not paid to Mr. Downs." But, whatever may be thought about this, the parties, Hickok and Willard, did not carry out any arrangement in the nature of a sale. Hickok paid nothing; Willard delivered nothing; and, at Willard's direction, Hickok subsequently assigned his interest to Pinch, and received money from Pinch for Willard, and delivered it to Downs. That came about in this way: Some time in November, Willard asked Pinch to loan him $750, to pay Downs, offering to have Hickok assign this bill of sale to Pinch, if he would do so, and to pay him interest on the loan. Pinch agreed to do this, and it ran along until the last of the month, when Pinch refused, unless Willard would give him a deed of certain land, and make such deed and the property covered by the bill of sale security for the other debts claimed by him to be owing to him from Willard, together with the $750 to be advanced. Willard declined to do that, but at the last moment they reached some sort of understanding, and the money was paid, and assignment of the writing was made by Hickok, as stated. The parties disagree about this arrangement. Willard claims that the money was borrowed, and the bill of sale assigned by way of security while Pinch claims that he paid the money, and took the assignment on the promise of Willard that he would come the next day, or soon thereafter, and execute a contract and note for all the money owing which should be secured as hereinbefore stated. He claims that Willard did not do this, and, therefore, that he had a right to stand upon his purchase of the horses for $750, through the Hickok bill of sale, which gave him an absolute title to them. Pinch testifies that he bought these horses of Hickok at Willard's request, to prevent Downs from taking them on his mortgage; that he understood that Hickok refused to pay any more money on them; that he did not know that Hickok did not own the horses, but surmised how the thing was. He said that, at the time he took the bill of sale, a verbal agreement was made to be...