Riley v. Conner

• Decision Date: 20 February 1890
• Citation: 79 Mich. 497,44 N.W. 1040
• Court: Michigan Supreme Court
• Parties: RILEY v. CONNER et al.

44 N.W. 1040

79 Mich. 497

RILEY v. CONNER et al.

Supreme Court of Michigan

February 20, 1890

Error to circuit court, Genesee county; WILLIAM NEWTON, Judge.

Durand & Carton, for appellants.

Wisner & Johnson and S. B. Gaskill, for appellee.

MORSE J.

This is an action of replevin to recover a team of horses and rig consisting of buggy, harness, and other things. The plaintiff had verdict and judgment against the defendants Conner and Dilley. Verdict of not guilty was rendered as to Wilson, by direction of the court, Dilley and one George D. Wilson were in the livery business at Flint under the firm name of R. G. Dilley & Co. March 19, 1888, they sold their entire stock to Riley for $2,125, Riley paying $25 down, and giving back a mortgage running to Dilley & Co. for $2,100, the balance of the purchase money, and also to secure the payment of $400 per year rent of the barn; such rent being payable to the defendant William S. Wilson, the owner of the barn. Dilley sold the stock to Riley, and George D. Wilson at that time seems to have had little, if any, interest in the same. In this mortgage was also included three horses, one buggy, and two sets of harness, which Riley brought from his home in Richfield to Flint at the time he purchased the livery stock of Dilley. Riley continued in the business until about the 26th of May, 1888, when he sold out to the defendant Conner. Wilson was active in bringing about this sale. Conner took the stock, with the exception of the property involved in this suit; and a bill of sale of the same was executed by Riley to him in the office of Lee & Aitken, attorneys at Flint. There were present, when it was drawn and signed, Lee, who drew it, and Riley, William S. Wilson, Conner, and Dilley. The bill of sale recited a consideration of $2,000, which was the actual consideration. No money was paid to Riley, but he was to leave $25 in board of the team reserved. The lease of the barn was assigned in the bill of sale to Conner, and it was provided that Riley should warrant and defend the sale against all claims, "except as against one chattel mortgage, for $2,100, given by said Riley to R. G. Dilley & Co., $100 of which mortgage is paid; and the balance of said mortgage, $2,000, said Conner has assumed and agreed to pay according to its terms, and the terms of the note given therewith, as a part of the purchase price above mentioned." After the delivery of the property sold to Conner, the team and rig in dispute in this suit were left in the barn, and the horses were being boarded by Conner. About the 31st day of May, 1888, Riley wanted to take his property away, but Conner would not let the team go without first seeing Dilley. Dilley refused to let them go, claiming the property on the chattel mortgage, on the ground that one of its conditions was broken, in that Riley had attempted to sell the property and to remove it from the city of Flint without his assent. Riley then demanded the property, and brought this suit. The facts above given are practically undisputed.

The plaintiff claimed upon the trial that Dilley had released this property from the mortgage, and had taken Connor as the party to whom he would look for its payment, and the balance of the property in Conner's hands as his sole security for such payment. The defendant denied that he had ever released the property in suit from the operation of his mortgage, or had ever agreed to look alone to Conner and the property in his hands for its payment. The counsel for the defendants requested the court to instruct the jury to render a verdict for their clients, and they contend here that there was no evidence in the case competent to be submitted to the jury, tending in the slightest degree to show that the defendant Dilley ever released his mortgage upon the property in suit, or ever assented to any understanding that it should be released, or ever made any agreement looking in that direction. The evidence certainly shows no express agreement that it should be released, but plaintiff's counsel claims that by Dilley's acts and words he in law released the property, and he says in his brief that "the only question in this litigation is this: Did Dilley, by his acts and words, release his lien on this team and rig, when Riley sold to Conner?" The testimony shows that, after Riley and Conner had settled upon the terms of the sale, Dilley was sent for, and made acquainted with the bargain. He went to Lee's office with the others. Wilson Conner, and Dilley swear that before going to the office, and on the way there, nothing was said to him in any way about releasing any of this property; nor was he asked to do so at the office, nor did he there agree to do so. The plaintiff, Riley, also testifies to the same effect. He says that, before they got to Lee's office, "I said nothing to him about releasing the mortgage, nor he to me." In the office he testifies that Wilson instructed Lee what they wanted. "I was present, and heard all that was said. After the paper [the bill of sale] was drawn I knew its contents, and signed it. Dilley sat there, and said nothing. He said nothing when Lee read the bill of sale, and asked if it was satisfactory, asked if it was all right. After reading it over he asked us all if it was all right. Wilson said, 'Yes; it was all right;' and Dilley nodded his head. I signed it. I don't think Dilley entered into the conversation, or had anything to say about it. At that point nothing was said about...