Randall v. Higbee

• Citation: 37 Mich. 40
• Court: Michigan Supreme Court
• Decision Date: 12 June 1877
• Parties: Leonard H. Randall and others v. Nelson Higbee

37 Mich. 40

Leonard H. Randall and others v. Nelson Higbee

Supreme Court of Michigan

June 12, 1877

Argued June 6, 1877

Error to the Superior Court of Grand Rapids. (Holmes, J.)

Judgment affirmed.

Assumpsit. Plaintiffs bring error. Affirmed.

Taggart Simonds & Fletcher, for plaintiffs in error, urged that as the goods had been taken tortiously, and converted into money and money's worth, assumpsit would lie. Watson v Stever 25 Mich. 386; Fiquet v. Allison 12 Mich. 330.

Standish & Fuller for defendant in error. Assumpsit cannot lie for property taken, except in behalf of the owner, and mortgaged chattels belonging to the mortgagor; the mortgage is a mere security, and not a transfer of title. Farrington v. Bristol 35 Mich. 28.

OPINION

Per Curiam

The plaintiffs had a mortgage on a stock of goods which had not been put on record. The defendant being a creditor of the mortgagor, took by arrangement with him or his wife, sufficient of the goods to satisfy his demand, sold a part of them and retained the remainder. Plaintiffs, claiming that defendant at the time of taking the goods, had knowledge of their mortgage, brought suit against him in assumpsit on the common counts.

This suit cannot be maintained. The goods did not belong to plaintiffs; they had only a lien upon them. If defendant, with knowledge of their lien, has wrongfully done any thing to injure plaintiffs' security they might have an action on the case against him: but there is no ground for an action of assumpsit. To warrant such an action, they should have been in position to claim the goods as owners; but that, as already stated, was not their right. Farrington v. Bristol 35 Mich. 28. They could not therefore claim that moneys received by defendant for the goods belonged to them as owners; their title to the moneys could not be superior to their right to that from which the moneys had been obtained.

Judgment affirmed.

The general nature of assumpsit is discussed in Ward v. Warner 8 Mich. 508; it will not lie for the price of goods unless the title has so passed as to deprive plaintiff of the right to sell them: Scotten v. Sutter 37 Mich. 526; a chattel mortgage does not give legal title until foreclosed: Kohl v. Lynn 34 Mich. 360. A mortgagee of land cannot, as such, bring ejectment. Livingston v. Hayes 43 Mich. 129, 5 N.W. 78.

This case is cited in Carpenter v. Graham 42 Mich. 191, 3 N.W. 974: 46 Mich. 531 and Warner...