Plummer v. Dilley

• Decision Date: 04 June 1923
• Docket Number: No. 98.,98.
• Citation: 223 Mich. 372,193 N.W. 792
• Parties: PLUMMER v. DILLEY.
• Court: Michigan Supreme Court

223 Mich. 372

193 N.W. 792

PLUMMER

v.DILLEY.

No. 98.

Supreme Court of Michigan.

June 4, 1923.

Error to Circuit Court, Eaton County; Clement Smith, Judge.

Action by Philo G. Plummer against Glenn P. Dilley. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, MOORE, and STEERE, JJ.Clyde Cortright, of Marshall, for appellant.

Thomas, Shields & Silsbee, of Lansing, for appellee.

SHARPE, J.

This case was tried by the court without a jury. Findings of fact and conclusions of law were filed. No exceptions were filed thereto. The only question open to review is whether the findings of fact support the judgment. Curry v. Shears, 216 Mich. 699, 185 N. W. 671, and cases cited.

The action is brought against the defendant, sheriff of Eaton county, to recover the value of certain personal property alleged to have been wrongfully sold by him under an execution. Plaintiff claims title under an agreement providing for the sale by him to Wing and Fulton of what was known as the ‘Henry Brotherton engine,’ and further:

‘And the said Wing and Fulton, in consideration thereof, agree to pay to P. G. Plummer, or order, the sum of eleven hundred ($1,100.00) dollars as purchase price of same.’

A $400 down payment was made, and the balance was to be paid in six installments. It then provided:

‘The title to the above-mentioned goods is to remain in P. G. Plummer, his heirs or assigns, until the full purchase price is paid in full, with interest at 7 per cent. And in default of any of the above-mentioned payments when due the full amount of the indebtedness shall become due and payable at once, and the said P. G. Plummer, in default of said payments, may enter upon any premises without process and recover possession of the above goods, and all payments made thereon by said Wing and Fulton shall be retained by P. G. Plummer as rental for the above said property.’

A contract containing similar provisions was considered in Thomas Spacing Machine Co. v. Security Trust Co. (Mich.) 193 N. W. 790 (handed own herewith). The conclusion there reached is decisive of the question here presented.

The judgment is reversed, with costs to defendant, and a new trial ordered.