Smith v. Mitchell

• Decision Date: 05 December 1863
• Citation: 12 Mich. 180
• Court: Michigan Supreme Court
• Parties: William W. Smith v. Preston Mitchell

12 Mich. 180

William W. Smith v. Preston Mitchell

Supreme Court of Michigan

December 5, 1863

Heard April 15, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Calhoun Circuit.

Mitchell brought suit in trover, to recover the value of certain furniture, which he claimed under a general assignment made to him by Increase A. and William A. Pendleton, composing the firm of I. A. Pendleton & Son, for the benefit of their creditors, and which defendant was alleged to have converted to his own use on 24th August, 1857, the date of the assignment. Defendant justified taking the property as constable, by virtue of executions issued against the Pendletons.

On the trial, the assignment was offered in evidence. It purported to assign "all of our stock in business, goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, and the securities taken for the same, except, however, our household furniture and property exempt by law from execution. The same being enumerated and set forth in a schedule hereto to be attached, marked schedule A." Defendant objected that the assignment was void on its face, for the reason that the exempt property was not set apart from the stock, nor reserved, but was to be set apart by a schedule to be attached; but the court overruled the objection.

The schedule of property attached to the assignment mentioned, among other things, "bill of chairs at depot, invoiced at $ 217.50, and freight to be deducted." This was the only property described as being at the depot, and no moss was mentioned in the schedule. I. W. Wilder, a witness for the plaintiff, testified that the assignment was executed in his presence. "Schedule was made, and I think attached to the assignment at the time--am not positive about it. The schedule was with the assignment, and it is my impression it was attached to it at the time. I. A. Pendleton, Preston Mitchell and myself were present at the time. Mr. Pendleton pointed out the furniture to Mitchell, and they walked around and looked at it. There was some conversation between them about the value of some of the articles. Mitchell went on giving directions to Pendleton for letting the property remain where it was. Account books and papers were taken from the desk by Pendleton, and Mitchell took some of them and looked at them, and handed them back to Pendleton, or laid them on the desk before him, and Mitchell gave directions as to opening or keeping new accounts of business. I don't think the intimation was very definite; the purport of it was to keep business separate from the old. Pendleton stated that he delivered the property to Mitchell; when Pendleton mentioned the property at the depot, Mitchell made some reply about its remaining there. The freight was not paid on that. Papers purporting to be invoices of the property at depot were handed to Mitchell."

On cross-examination he said: "Mitchell went to the shop with me, and the assignment was signed by one, I think by both, there; books taken down appeared to be account books used in the shop; don't recollect any other books; papers purporting to be invoices of property at the depot were taken down; other papers folded up like accounts or notes were taken down; my impression is Mitchell looked them over, and it is my impression Pendleton put them back; I saw young Pendleton at the shop before I left. There was some varnish, whitewood lumber, cherry and black walnut there, which Pendleton claimed exempt, and said he was going to work. I think there were two kegs partly full of varnish; may have been three. On being asked, what directions did Mitchell give? he answered; he told I. A. Pendleton to take care of the property, books, papers, etc., and sell what he could, but not on credit; directed the goods at the depot to be brought up as soon as money enough should be realized to pay the charges. All three, Mitchell, I. A. Pendleton & Son, were present at the time assignment was delivered. Heard Pendleton tell Mitchell there was the key; Mitchell told Pendleton to keep it. Mitchell had started towards the door; I did not see the key."

I. A. Pendleton testified, that he was of the firm of I. A. Pendleton & Son; that he was at shop at time referred to by Wilder; that articles were pointed out to Mitchell, the assignee, and moved in some instances in the shop so Mitchell could view them; all the property was in the salesroom except that at the depot; books and papers laid on the desk and pointed out to Mitchell; of the goods at depot, Mitchell said the goods must remain at depot until money was realized to pay freight, which was something over $ 40. Invoices of goods at depot were given up to Mitchell; witness gave him up the key; that it was his impression Mitchell took the key to the shop; Mitchell told him he must stay there in the shop, as his business was such he, Mitchell, could not. Mitchell gave him general orders to collect. Mitchell owned the building the goods were in. Witness gave up possession to Mitchell when he made the assignment. He occupied it under Mitchell, but has not occupied it as his lessee since. Said he did not sell anything before the levy made by defendant, some three or four days after the assignment. That Mitchell went out after goods were shown as above, that he came in the next morning, was there a moment or two, and his impression is he was there every day. That I. A. Pendleton & Son had no moss at the depot at the time of the assignment that witness was aware of.

W. H. Pendleton also testified, that the firm had no moss at the depot, to his knowledge, at the time of the assignment.

The plaintiff having rested, the defendant offered in evidence the executions under which he justified, with indorsements thereon showing levies on the property in controversy, and returns of public sales of some of it, made since the commencement of the present suit. The returns were objected to by the plaintiff, and excluded by the court.

The defendant then proved by James A. Way that, during the year 1857, he was an agent of the Michigan Central Railroad Company, and had charge of the freight office and depot at Marshall; and the defendant then offered to prove that there were two bales of moss of the value of $ 50 at said depot, on the 23d and 24th days of August, 1857, directed to I. A. Pendleton & Son, and afterwards claimed by them, and one of them taken away on the first day of September, 1857.

But to the introduction of such testimony, the plaintiff objected, and insisted that the same was irrelevant, and that the assignment did not cover that property; that it did not appear that I. A. Pendleton & Son ever ordered any such property, or property of that kind, but the contrary; and if there was any property of that kind there it does not appear whether it was there for them, or that the assignee knew or had any knowledge or notice of it. The court sustained the objection, and the defendant excepted.

The defendant then offered to prove by another witness, that I. A. Pendleton, on the first day of September, 1857, disposed of one bale of moss above referred to, at the depot, in payment of a debt of I. A. Pendleton & Son, and paid said debt in full, and under such circumstances as to leave no doubt it was done with the knowledge and consent of the assignee. To such testimony the plaintiff objected, for the reason the defendant did not offer to show the property was covered by the assignment, and that it was anticipating the conclusion of the jury upon circumstances proposed to be proved, and that such proposition does not directly show that such transfer and payment was with the knowledge and consent of the assignee; and the objection was sustained by the court.

The court at the same time informed the defendant's counsel, that if they proposed to show that the assignors, or either of them, disposed of any of the assigned property after the assignment, with the consent of the assignee, they might show it.

The defendant then offered to prove by another witness, that the property mentioned in plaintiff's declaration was fairly sold at public auction, in the month of September, 1857, at a constable's sale duly advertised according to the statute, at Marshall, and what prices the said articles brought at such auction, for the purpose of showing the value of the articles. This evidence was objected to as irrelevant, and rejected by the court.

The defendant further offered to prove a prior levy on the property to that made by himself, by virtue of another execution against I. A. Pendleton & Son, and that the officer making the same took from him a large share of the property levied upon, to the value of two hundred dollars, and that the defendant never sold the same. This testimony was also rejected as irrelevant.

The defendant further offered to prove by the witness Way the amount of freight and charges on the goods at the depot, that a portion of them, referred to in the assignment, was openly and fairly sold at public auction, after five days' public notice, in April, 1858, to pay freight on the same and charges of Michigan Central...