Shipman v. Seymour

• Decision Date: 28 January 1879
• Citation: 40 Mich. 274
• Court: Michigan Supreme Court
• Parties: Ozias W. Shipman v. Charles T. Seymour

40 Mich. 274

Ozias W. Shipman v. Charles T. Seymour

Supreme Court of Michigan

January 28, 1879

Submitted January 14, 1879; January 15, 1879.

Error to Superior Court of Detroit. Submitted January 14 and 15. Decided January 28.

Judgment affirmed, with costs.

Griffin & Dickinson for plaintiff in error.

Geo Gartner and F. A. Baker for defendant in error.

Cooley J. The other Justices concurred.

OPINION

Cooley J.

Plaintiff in error is assignee of the copartnership of Wilson Bros., composed of George B. Wilson and Frank B. Wilson, recently doing business in Detroit. The assignment is a general assignment for the benefit of creditors, and bears date January 18, 1878. Seymour, the defendant in error, is named in the assignment as one of the creditors of Wilson Bros., and this suit is replevin to recover the possession of certain goods purchased by them of him shortly previous to the assignment, and which he claims were bought with knowledge on their part of their insolvency, and with the intention not to make payment.

It was shown on the trial that Wilson Bros. commenced doing business in November, 1872, with a capital of $ 9,000. The inventories made by them at the beginning of each year showed the following results: January 1, 1874, excess of assets over liabilities, $ 8,333; January 1, 1875, ditto, $ 13,824; January 1, 1876, ditto, $ 4,118; January 1, 1877, excess of liabilities over assets, $ 2,964; January 1, 1878, ditto, $ 10,541, of which assets $ 7,932 was stock and fixtures, and $ 5,189 accounts. Previous to April 12, 1877, Calvin Graves, the grandfather of the brothers, had loaned to them $ 8,000, all but $ 1,000 of which then remained unpaid. On that day they executed to him a chattel mortgage of all their stock in trade, fixtures and furniture, which was made to cover "also all other goods, chattels and personal property which may hereafter be added to or substituted for said stock of goods and personal property or any part thereof, or mingled therewith." On the execution of this mortgage, Graves advanced to the mortgagors $ 2,000 more, making the debt to him $ 9,000, and the mortgage was conditioned for the payment of this sum with interest within one year, and also of the further sum of $ 1,000, should Graves advance that further sum to them as was then contemplated. This mortgage was not filed with the city clerk until January 16, 1878. It was conceded on the trial that it was purposely kept from the files for two months lest it might be affected by the operation of the bankrupt law in case the co-partnership should become bankrupt, and it was claimed that the failure to file it earlier after the expiration of the two months was due to an oversight, and was not intentional.

One Watson was the agent of defendant in error in making sale of the goods in controversy. He testified to being in Detroit December 13, 1877, with samples of tobacco which he exhibited to George B. Wilson. He also asked George B. Wilson whether the assets of the firm exceeded their liabilities, and was told in reply that they did. The next morning the firm ordered of him ten bales of tobacco of a particular sample, five bales to be shipped at once, and five bales about January 1, 1878. Watson testified that he would not have made this sale but for the representation of George B. Wilson respecting their pecuniary circumstances. Wilson's evidence was given respecting these transactions, and the tendency of it was to show that what was said in reference to the assets of the firm was made in advance of any careful examination, and was a casual remark while the parties were walking together in the street. The ten bales of tobacco were ordered by Watson from his principal in New York by letter, and these were the goods in this suit. One of the bales had been worked up before the assignment was made, and nine then remained on hand.

I. On the trial Watson was a witness for Seymour, and was allowed under objection to state that he learned of the assignment on the evening of January 18, 1878; that he saw George B. Wilson the next morning and asked him how he reconciled his failure with the statement of their affairs made by him some thirty days before; that Wilson did not respond to the inquiry, but made some remark about having lost a good deal of money in a series of years in failures. It is complained that by this evidence the admissions of the assignors made after they had parted with all control, were brought into the case to affect their assignee.

It is a little difficult to understand the object of plaintiff in insisting upon putting this evidence into the case, or how the defendant could suppose he was prejudiced by it. What Wilson said was no admission of fraud, and tended rather to present a valid excuse than to show dishonesty in his failure. Perhaps it would have been wiser for the judge to exclude this conversation, but we cannot consent that parties shall be put to the expense of another trial merely because the judge permitted the introduction of immaterial evidence where it is plain it could not have affected the issue. Comstock v. Smith, 20 Mich. 338; Continental Insurance Co. v. Horton, 28 Mich. 173. We sit here to correct substantial errors, not to rectify those which are harmless, and we cannot ignore the fact that the trial judge must dispose of questions of the admissibility of evidence under many embarrassments, and that these would be increased instead of diminished if in the court of review his decisions even on what prove to be immaterial matters should be subjected to nice and technical criticism. In this case we find no reason for a suggestion that his ruling harmed any one; and we dismiss it without further comment.

II. On the cross-examination of Watson it was shown that Seymour had sold Wilson Bros. goods in October, 1876, and taken notes therefor which had been extended from time to time; that Watson called upon them in May, July and September, 1877, and offered to sell them goods, but they did not then buy of him. Defendant then put to the witness questions as to what was said by Wilson Bros. to him on these occasions; but the questions were overruled. It is claimed that this ruling was erroneous; that the answers might have tended to show that Watson did not rely upon what was said to him by George B. Wilson in December in making the sale to the firm at that time, but upon his general confidence in the firm arising from former dealings, offers to deal which were declined, etc. It is easy to suggest the possibility of something having been done or said at these former meetings that might have had some bearing on the present controversy, but the defendant at the trial made no distinct offer of evidence that would be important, and prima facie the statements made by Wilson were mere hearsay, and for that reason wholly inadmissible. If Watson then offered to sell to the firm on credit, the offer showed his confidence; if the Wilsons then declined to purchase, the fact was some evidence that at that time they had no purpose to defraud; but their statements then made to Watson are prima facie not admissible, because they could not have tended to throw light upon the conduct of either party in new dealings two months later.

III. Watson was permitted to testify under objection, that Seymour's instructions to him, under which he made the sale in December, 1877, were to make special inquiries of Wilson Bros. and of others in Detroit before he sold them any goods, and if he was satisfied with the statements made and with the answers to his inquiries, then to sell them a bill of goods. It is said that this evidence was immaterial because it appeared that Watson did not communicate to Seymour the result of his inquiries when transmitting the order for the ten bales of tobacco, or at...