Reed v. Gould

• Decision Date: 27 October 1892
• Citation: Reed v. Gould, 93 Mich. 359, 53 N.W. 356 (Mich. 1892)
• Court: Michigan Supreme Court
• Parties: REED v. GOULD et al.

53 N.W. 356

93 Mich. 359

REED v. GOULD et al.

Supreme Court of Michigan

October 27, 1892

Error to circuit court, Ingham county; ROLLIN H. PERSON, Judge.

Trover by Edwin E. Reed against Walter J. Gould and others. Judgment for plaintiff. Defendants appeal. Reversed.

Cahill & Ostrander, for appellants.

Q A. Smith, for appellee.

DURAND J.

This is an action of trover. The declaration alleges that on March 7 1888, the plaintiff and one Mark S. Jacobs were copartners in a retail grocery business at Williamston, under the firm name of Reed & Jacobs, and, as such, were the owners of the stock that in conducting their copartnership business they bought goods of W. J. Gould & Co., who are the defendants in this action; that on the date above mentioned, and in the absence of the plaintiff from Williamston, his said partner, Mark S. Jacobs, turned over and delivered into the possession of the defendants all the stock of goods, wares, and merchandise, in payment of certain demands of W. J. Gould & Co. against the firm of Reed & Jacobs, and also for a further consideration of $384, paid by said defendants to said partner, Mark S. Jacobs. Each count of the declaration alleges substantially that the plaintiff, who was a married man and a householder, was lawfully and individually possessed of an exemption in said stock of goods to the amount of $250, and which right the defendants denied, contrary to the provisions of section 7686, How. St. In order that there might be no doubt as to the claim which plaintiff made in his declaration, plaintiff's counsel, in opening the case to the jury, used this language. "This suit is bought for the exemption-$250-which we claim under the law he is entitled to, and that he [Jacobs] could not surrender this over to Mr. Gould, or anybody else, so as to deprive him of it. Mr. Reed made suitable demand of Mr. Gould and the firm there for his exemption in Detroit, and was refused, and he brought this suit to get his $250 exemption that he thinks Mr. Jacobs could not deprive him of, and that is what the suit is for; and, of course, if he should recover it, the recovery will be for the $250 and interest on it at 7 per cent. from the time they took it and converted it." In order to still further remove all doubt as to the claim made by the plaintiff in his declaration, and after some discussion as to the introduction of certain testimony, his counsel stated, and the statement does not seem to have met with any objection from any one, as follows: "Let the record show that defendants consent that the amendment be made at our convenience in the original, by adding to each count the following: 'Contrary to the provisions of section 7686, How. St."' The case was tried by the learned counsel upon both sides upon this theory, and upon no other. After the testimony was all in, the learned circuit judge submitted the case to the jury upon an entirely different theory; and, in so far as it is necessary for the purposes of this case, we quote from his charge to the jury: "A partner, as well as an individual, has by the law certain exemptions; that is, a certain amount of property is by the law practically set aside for the use of the debtor and his family. But that exemption exists as against levy by execution and as...