Tate v. Torcoutt

• Decision Date: 18 May 1894
• Citation: 100 Mich. 308,58 N.W. 993
• Court: Michigan Supreme Court
• Parties: TATE v. TORCOUTT.

58 N.W. 993

100 Mich. 308

TATE v. TORCOUTT.

Supreme Court of Michigan

May 18, 1894

Error to circuit court, Newaygo county; John H. Palmer, Judge.

Assumpsit by George Tate against Michael Torcoutt. Judgment for defendant. Plaintiff brings error. Affirmed.

James Brassington, for appellant.

L. G Rutherford, for appellee.

LONG J.

November 18, 1890, the plaintiff loaned to one Alpheus Tibbets, $150 and to secure the money he took from Tibbets a chattel mortgage on a quantity of personal property, among which was a span of horses. Before the mortgage became due, Tibbets contrary to the terms of it, removed the horses out of the county of Oceana, where the mortgage was given, and sold them to the defendant, who lived, at that time, in the county of Newaygo. The plaintiff, learning of that fact, on January 5 1891, went to the defendant's residence, where a written agreement was drawn up between them, as follows: "This agreement, made and entered into this fifth day of January, 1891, as follows, to wit: Michael Torcoutt hereby agrees that he will safely keep and care for a certain span of horses heretofore mortgaged by Alpheus Tibbets to George Tate [until such mortgage becomes due, and that he will then deliver them over to said George Tate, or pay the sum of $65, provided the said Tate shall fail to recover the full amount of his due out of the balance of the property covered by said mortgage]. Dated, Beaver, Mich., 5th day of January, 1891. [Signed] Michael Torcoutt. Witness: A. J. Spencer." The words inclosed in the brackets had a pencil line drawn through them, and interlined in pencil were the words, "Not agreed to." When the mortgage became due, the plaintiff went to the defendant's place of residence, and took the horses into his possession, and drove them back into Oceana county. Torcoutt thereupon replevied them from Tate. The suit was tried in Oceana county, and a verdict found in favor of Torcoutt. No appeal was taken from this judgment, and Torcoutt retained the horses. Tate thereafter advertised and sold the balance of the property covered by the chattel mortgage, which sale did not bring sufficient to satisfy his demand under the mortgage, and he then made demand for the horses, which demand was refused. He then brought suit in justice court against the defendant on the common counts in assumpsit. On the trial of this cause in the circuit court, the plaintiff, having shown the facts herein recited, offered in evidence the contract, the chattel mortgage, notice of sale, etc., which were objected to on the ground that they were inadmissible under the pleadings. The court sustained the objection, and stated: "From the statement of counsel representing the plaintiff, giving in detail the facts and circumstances upon which he relies to support the declaration in this case, my judgment is that the declaration is not sufficient to admit any evidence, and I therefore hold the objection good." The court further said to plaintiff's counsel: "Do you want me to direct a verdict in this case, or what course will you pursue?" Plaintiff's counsel: "We will ask leave to amend the declaration." Defendant's counsel: "We object to it. There is nothing here to amend." The Court: "The trouble is, they claim, upon the other side, the declaration does not state a cause of action. It states a cause of action upon a common count declaration. It might, but for the statements of counsel. I am inclined to think I will allow you to amend the declaration, if you desire, upon the usual terms, and I will leave it optional with the other side to go to trial at this term or the next term. The better way is, if you wish to test this, to have me direct a verdict, and you can then go to the supreme court." Plaintiff's counsel: "I think so, and you may direct a verdict."

Upon the state of facts in the...