Stamp v. Case

• Decision Date: 01 July 1879
• Citation: 2 N.W. 27,41 Mich. 267
• Court: Michigan Supreme Court
• Parties: JAMES H. STAMP v. MANSON B. CASE.

2 N.W. 27

41 Mich. 267

JAMES H. STAMP v. MANSON B. CASE.

Supreme Court of Michigan

July 1, 1879

A debtor made an assignment for the benefit of his creditors to C., who resided in Detroit, and with whom he had had some previous conversation in regard thereto. C. was a member of a firm who were creditors of H., and the assignment was executed by H. and delivered to L., an agent of such firm, C having no actual knowledge of such assignment until a few days after, when the assignment was delivered to him by L and he at once accepted the trust. L. left H. in possession for C. Shortly after his departure, and before his delivery of the deed of assignment to C., in person, an attachment against H. was levied on the stock covered by the assignment. Held, that the assignment had priority over the attachment.

Error to Cass county.

Howell & Carr and H. Swan, for plaintiff.

H.D Smith and Norris & Uhl, for defendant.

GROVES, J.

This case involves a contest between an assignee for creditors on the one hand, and certain attaching creditors on the other and the question is, which first took effect, the assignment or the levy of the attachment.

The fairness and good faith of the assignment are not disputed and no objection is urged against the regularity of the attachment proceedings. The determination depends finally on the answer to this question: Were the acts concerning delivery of the assignment such as to bind the property prior to the attachment levy? The defendant in error claims that they were, and the plaintiff in error that they were not.

The subject was discussed at the bar with much learning and ability, and many authorities were cited. We shall not attempt an examination and comparison of cases. A full and critical review would require much time and space, and a partial examination would not be useful. The view taken is supposed to bring the case within principles generally admitted. There is no controversy about the facts, and their meaning is not doubtful.

November 19, 1878, Nelson J. Huber was engaged in merchandising at Marcellus, in Cass county. He had been so engaged for some time previously. He was in debt to Charles Root & Co., of Detroit, in the sum of $2,400; to R. & J. Cummings & Co., of Toledo, in the sum of $1,000; to Johnson & Wheeler, of Detroit, in the sum of $300; and to Barkman & Thorp, of Three Rivers, in the sum of $12, and to no others. These debts were all due.

Between two and three o'clock of that day the plaintiff in error, being sheriff of the county, levied an attachment in favor of R. & J. Cummings & Co. on the goods in Huber's store, and found Huber in possession. He informed the sheriff that he had assigned to Case, and was holding for him. Case subsequently brought this action of trover on the sheriff seizure, and recovered.

We may now turn to matters connected with the giving of the assignment. About two weeks before the attachment Case, who was one of the firm of Charles Root & Co., met Huber and conversed with him about his affairs. His business embarrassment was talked about, and Case desired that he would consult him in the event of his becoming so pressed that he could not continue, and Huber then made request that he would settle up his matters in case it was found necessary to suspend business, and Case then promised he would do so. He told Huber that "if it became necessary he would settle his business up for him; that he should do nothing without consulting him, and not lose his nerve and give any mortgage to Cummings & Co." An assignment was not in terms mentioned.

Early in the day of the attachment--November 19--and before its issue, the firm of defendant in error, Charles Root & Co. sent their salesman and agent, Leonard, to Huber, at Marcellus, to get their debt secured. No instructions seem to have been given concerning the way to be taken or the security to be obtained. The agent was...