Sandler v. Bresnaham

• Decision Date: 30 April 1884
• Court: Michigan Supreme Court
• Parties: SANDLER v. BRESNAHAN.

19 N.W. 188

53 Mich. 567

SANDLER v. BRESNAHAN.

Supreme Court of Michigan

April 30, 1884

A judgment will not be disturbed where a judge charges that if the jury find that a plaintiff purchased goods on a certain day, they belong to him from that day, the evidence not tending to show a purchase on that day, nor an identification of the property sold, but that the sale was made and the consideration delivered on a day subsequent, but before a levy under a writ of attachment, the error being harmless.

When property sold has been identified, it is immaterial that it had not been received and weighed by the purchaser, and the quantity agreed upon ascertained, before a levy under a writ of attachment against the vendor, and the sale must stand. Where a record fails to show how a jury made up their award of damages, and it was possible for them, on the evidence, to award the amount, without including improper items, a judgment will not be disturbed, because they may have included the improper items.

Error to Muskegon.

F.G Holmes, for plaintiff.

Smith Nims, Hoyt & Erwin, for defendant and appellant.

COOLEY C.J.

Action of replevin for a quantity of scrap-iron. The plaintiff resides in Grand Rapids, and claims title to the iron through a purchase made from one Suher, on January 6, 1883. It appears incidentally in the case that defendant, when the property was taken from him on the writ in this case, was holding the property under a writ of attachment against Suher which was levied January 10, 1883. The defendant, however, did not justify under the attachment, and he seems not to have pleaded in the case. The plaintiff had never had possession of the iron, and to show his right to maintain the suit it became necessary for him to prove the purchase from Suher. His evidence was that on January 6 1883, he had a conversation with Suher in which he agreed with him upon the purchase of a car-load of scrap-iron at Muskegon, to be sent to him by rail, and the freight to be paid by Suher. The price was agreed upon, and seven dollars and a half was paid upon it by plaintiff. Suher had at the time a car partly loaded at Muskegon, and was negotiating for the purchase of more from Ryerson, Hills & Co. He finished that negotiation, January 9, 1883, and on that day completed the loading of the car from the amount purchased, and drew upon the plaintiff in favor of Ryerson, Hills & Co. for $35 in payment. He also put into the car some kerosene barrels which he intended for the plaintiff, but which it does not appear that the plaintiff had bought, or otherwise acquired a title to. The draft to Ryerson, Hills & Co., plaintiff, by telephone promised them to...