Sullivan v. Sullivan

• Decision Date: 08 June 1888
• Citation: 70 Mich. 583,38 N.W. 472
• Court: Michigan Supreme Court
• Parties: SULLIVAN v. SULLIVAN.

38 N.W. 472

70 Mich. 583

SULLIVAN v. SULLIVAN.

Supreme Court of Michigan

June 8, 1888

Error to circuit court, Wayne county.

Trover by John Sullivan against John C. Sullivan. Judgment for plaintiff, and defendant appeals.

Corliss, Andrus & Leete, (John Atkinson, of counsel,) for appellant.

Elliot G. Stevenson, for appellee.

CAMPBELL J.

Plaintiff sued defendant in an action of trover for the conversion of two barrels of whisky, which plaintiff claimed to own. The facts, aside from some questions as to the admission of testimony, were these. Plaintiff is a liquor dealer, in the wholesale business, at Cincinnati, having a distillery in Frankfort, Ky. Early in February, 1887 plaintiff, being in Detroit, took a verbal order from Ryan &amp McCarney, of Detroit, for two barrels of whisky, and sent it to the distillery at Frankfort, where the order was filled and the whisky shipped to Detroit by the only railroad out of Frankfort on February 19th. February 26th one of the firm of Ryan & McCarney sent plaintiff the following telegram: "Cancel order. Will explain by mail." Plaintiff responded: "Goods were shipped on 21st. Receive, and wait further advice." No letters were written by either party, and no other communication passed till the whisky was disposed of. It arrived in Detroit in due time, and Ryan & McCarney paid the freight, and put the whisky among their stock. On March 9th, defendant, who had an account against Ryan & McCarney of $215 for a balance of goods sold them, purchased the whisky for $220, receipting his account, and paying $5 in addition, and the whisky was delivered to him and taken away. He bought in good faith, and without notice of any claim against the property. On the same day and later, Ryan requested one Roe to telegraph the failure of his firm to some outside creditors, and Roe sent this dispatch to plaintiff: "Ryan & McCarney failed to-day. Goods not opened. E. RYAN." Ryan did not see this dispatch before it was sent, and Roe testifies that the reference to the goods was not dictated to him, but inserted of his own motion. But the testimony is clear that it was sent after the sale to defendant. Plaintiff came to Detroit, and, learning that defendant had and claimed the whisky, demanded it, and brought this action. The court below, after giving a number of instructions on various questions, charged the jury, who came in, and said they could not agree. The jury then asked the judge whether Ryan & McCarney would, under the circumstances, after payment of freight, have been liable to plaintiff for the price of the goods, if solvent. The judge charged that they would not. On being told by defendant's counsel that a specified charge had been given that was to a different effect, the court said he had not so charged. The court further charged that, Ryan & McCarney having notified plaintiff that they did not want the goods, these might have remained there from that time until this day, and Ryan & McCarney could not have been liable for the value of them. The jury then found for plaintiff...