Ripley v. Case

• Decision Date: 15 November 1889
• Citation: 43 N.W. 1097,78 Mich. 126
• Court: Michigan Supreme Court
• Parties: RIPLEY v. CASE.

43 N.W. 1097

78 Mich. 126

RIPLEY v. CASE.

Supreme Court of Michigan

November 15, 1889

Error to circuit court, Wayne county; GARTNER, Judge.

CAMPBELL, J.

Plaintiff sued defendant for money had and received. The bill of particulars based the demand on a fraudulent sale of a worthless bond of the Michigan Air-Line Railroad Company upon the representation that it was a bond of the Michigan Central Railroad Company. The court below, without assigning any reason, took the case from the jury. The only question is whether the plaintiff showed anything to go to the jury. As this is not an action for damages for fraud, but is to recover the whole consideration, as obtained from plaintiff or an absolutely worthless bond, we see no reason why the declaration is not good, if any such case was made as is relied on. The plaintiff's showing, for this purpose must govern, whether contradicted or not. That was to this effect: November 15, 1887, defendant wrote, requesting one J W. Renewick, of New York, to take a bond of $1,000 left with him, and cut off and return the past due coupons. He was then to leave it with A. S. Flandraw & Co., who had a small debt against defendant, in order that they might sell it. Some reasons were given why defendant wanted to sell it. He stated he had nine more and thought they could be sold, and asked Renewick simply to say the bond had been left with him for safe-keeping. Renewick had held it since December, 1885. The bond belonged to a series issued by the Michigan Air-Line Company, confined to a short section, of 35 miles, between Ridgeway and the Detroit & Milwaukee Railroad. It was issued in 1870, and the mortgage had been foreclosed, and the bonds had no value, or legal efficacy. Flandraw & Co. was a firm name of Keyes & Wilson. The bond was handed to Keyes & Wilson. Defendant wrote to them on the day he wrote Renewick, telling them he had requested Renewick to hand them "a M. C. R. R. bond for $1,000," and saying "if you can sell the same, please to do so." This abbreviation, "M. C. R. R.," is the recognized name of the Michigan Central Railroad. That road had become liable on a series of bonds known as "Air-Line" bonds which were at a premium in the market, and the bond in question bore a general resemblance to the Michigan Central bond. The absence of past-due coupons was some indication that it was not in default. In the letter to Flandraw & Co. defendant made the same statement as to Renewick that he had been buying a house and lot, and was a little hard up. Keyes & Wilson (or Flandraw & Co.) put the bond in the hands of a broker, showing him defendant's letter. There was a few days' delay in finding a purchaser, and on November...