Reid, Murdoch & Co. v. Ferris

• Decision Date: 25 May 1897
• Citation: 71 N.W. 484,112 Mich. 693
• Parties: REID, MURDOCH & CO. v. FERRIS.
• Court: Michigan Supreme Court

71 N.W. 484

112 Mich. 693

REID, MURDOCH & CO. v. FERRIS.

Supreme Court of Michigan

May 25, 1897

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by Reid, Murdoch & Co., a corporation, against Jay Ferris. Judgment for defendant. Plaintiff brings error. Reversed.

Bundy &amp Travis, for appellant.

Drury &amp Strong, for appellee.

LONG C.J.

Plaintiff was a wholesale grocery house in Chicago, and defendant a retail grocer in Grand Rapids. This was an action of trover brought to recover the value of about $1,200 worth of goods sold by plaintiff to defendant between October 30, 1894, and January 9, 1895. The goods were sold at different times during that period, and on different terms of credit, some of the invoices being on 60 days' time, and others on 30 days' time; the amount of the largest sale being $238.70 and the smallest one $4. The plaintiff claimed, and introduced evidence tending to show, that the purchases were fraudulent. In its declaration, the plaintiff set up that, on discovering the fraud, it replevied from the defendant a part of the goods shipped in the last two invoices; that the replevin case was commenced in the justice court, and appealed to the circuit, and there tried on the merits, and resulted in a judgment in favor of plaintiff for the goods replevied and nominal damages of six cents; that the goods replevied came out of the two invoices, of December 28, 1894, for $209.75, and January 9, 1895, for $78.75; that the value of the goods replevied was $81.50; that the defendant, at the time the replevin suit was instituted, was not in possession of the other goods included in said two invoices, he having sold or otherwise disposed of the same. And plaintiff averred that this judgment in such replevin suit constituted a binding prior adjudication between plaintiff and defendant that said two purchases were fraudulent. The defendant, in his amended plea, also set up the bringing of said suit of replevin, and the recovery therein of a part of the goods contained in said two sales, one of December 28, 1894, and the other of January 9, 1895, and averred that, because of the recovering of said judgment in replevin, the plaintiff was not entitled to maintain this action of trover. On the trial of this cause, the plaintiff showed the proceedings in said replevin suit, and gave evidence tending to show that the goods replevied were all the goods that then remained in the possession of defendant at the time the replevin suit was instituted. At the conclusion of plaintiff's evidence, defendant's counsel moved the court to instruct the jury to render a verdict in favor of defendant, for the reason that the plaintiff could not split its cause of action, and that the judgment in replevin was a bar to the present action, which motion was granted by the court. To this ruling the plaintiff excepted, and the question thereby raised is the sole and only question involved on this record.

The court below was in error. As well stated by counsel for plaintiff: "The effect of defendant's position here is, not that a single cause of action cannot be split up, but that separate causes of action in tort must be combined." The sales were separate and distinct, and on different terms of credit. Plaintiff could have elected to rescind some of them, or treat them as void, and ratify others, and sue in tort for some, and in contract for the others. Lee v. Burnham (Wis.) 52 N.W. 255; Stickel v. Steel, 41 Mich. 350, 1 N.W. 1046. In the latter case it appeared that S. bought a bill of goods in August, with credit for four months from September 15th following, and on the same day, from the same person, another bill of goods, at a credit of four months from October 1st following. It was held that the two bills of goods did not constitute one demand when one became the subject of suit before the other became due, or when the remedy for one was barred before the time expired for the others. In the present case the tort consisted of the fraudulent purchases, and were committed when the purchases were made and the goods obtained, and not when their fraudulent character was discovered. Each purchase was a distinct and several act of fraud, for which the plaintiff was entitled to maintain a separate action. This doctrine is fully enunciated in Lee v. Kendall, 56 Hun, 610, 11 N.Y. 131, and Shook v Lyon (Com. Pl.)...