Wait v. Kellogg

• Decision Date: 14 October 1886
• Citation: 63 Mich. 138,30 N.W. 80
• Court: Michigan Supreme Court
• Parties: WAIT v. KELLOGG.

30 N.W. 80

63 Mich. 138

WAIT v. KELLOGG.

Supreme Court of Michigan

October 14, 1886

Error to Calhoun.

W.D. Adams and Norris & Uhl, for appellant.

Miner &amp Stace, for defendant.

SHERWOOD J.

On the nineteenth day of December, 1882, and for several years previous thereto, Mrs. Sarah K. Burleigh carried on a store business at the village of Homer, in the county of Calhoun. The business was carried on in her own name, but actually transacted by her husband as her agent.

His name was George R. Burleigh. Mrs. Burleigh did her banking business with Thomas Lyon. Mrs. Burleigh became largely indebted to various persons and firms in conducting her business, and, among others, on the said nineteenth day of December, 1882, she owed Mr. Lyon $5,000; and on that day, to secure the payment of the same, executed and delivered to him a chattel mortgage on her entire stock of goods and other property. The money thus secured was made payable on demand and the mortgage was properly filed when made and executed. On the same day Lyon took possession of the mortgaged property by virtue of the mortgage, and afterwards advertised and sold the goods, and he became the purchaser of the same being highest bidder therefor; and thereupon Lyon reopened the store, and carried on the business, using the old clerks in the store, and using the same stock which was in the store before the sale, with a few goods added. The debt to Lyon, the mortgage given to secure the debt, and the sale of the mortgaged property are not questioned.

After Lyon had run the store about a week, and put in six or seven hundred dollars' worth of new goods, he sold out the stock and business to Martin Wait, the plaintiff in this case, who took possession thereof January 5, 1883. Prior to January, 1883, the plaintiff resided at Butler, in Branch county, a few miles from Homer, where he carried on a farming business, and in connection therewith ran a chair-factory and country store. When he bought the store at Homer he removed there, and engaged in the store business. He at once took George R. Burleigh into his employment, and intrusted him with the management of the store business.

About the thirteenth of February, 1883, William P. Roome & Co., of New York, creditors of Mrs. Burleigh, levied an attachment on a portion of the Burleigh stock of goods, which the plaintiff replevied. On the seventeenth day of February, very soon after the service of the writ of replevin, the defendant, as the sheriff of the county of Calhoun, by virtue of a writ of attachment from the circuit court in favor of Kellogg and Baker against Sarah K. Burleigh, attached certain other parcels of the same goods, and in a day or two thereafter levied two other attachments from the circuit court, viz., one in favor of the New Home Sewing-machine Company, and one in favor of Henry W. Price & Co.; and also two justice's court executions, one in favor of Lyon and Harris, and one in favor of Buhl & Co.,--all against Sarah K. Burleigh,--were levied by the sheriff on other parcels of the same stock; and the plaintiff brings this suit in trover to recover the value of all the goods seized and levied upon on and after February 17, 1883. These goods were all taken by the defendant as the property of Mrs. Burleigh.

The plaintiff claims to be a bona fide holder of the goods under his purchase of the property from Mr. Lyon, and, further, that the defendant took large quantities of goods under his writs which were never a part of the Burleigh stock.

The defendant's contention is that the plaintiff is not a bona fide purchaser; that the several sales from Mr. Burleigh down to him were fraudulent, and conveyed no title as against Mr. Burleigh's creditors; that defendant took no goods except from the Burleigh stock, to his knowledge; and, if any were taken by him, it was caused by the commingling of the goods, and the refusal of the plaintiff to point out the goods not belonging to the Burleigh stock. The defendant's plea in the case was the general issue, with notice that he would show justification under his several writs. The cause was tried at the Calhoun circuit, by jury, and judgment was rendered for the defendant. Plaintiff appeals, and we are asked to review a record in the case containing 78 assignments of error, upon all of which counsel for plaintiff announces he relies.

All the evidence taken on the trial is contained in the record, except that relating to the subject of value of the goods. There seems to be no question as to what was actually done when the transfer of the goods was made. It appears that, when Lyon transferred the stock to the plaintiff, the latter secured the payment of the purchase money by giving his note, due in 30 days, for $600, and a mortgage upon his farm for $3,900, it being the balance. The note was afterwards paid. It also appears that, by the taking of the goods by the defendant, the plaintiff's business was broken up for a number of months, and he was very much damaged thereby.

After the proofs were closed, the circuit judge submitted to the jury, in his general charge, by way of recapitulation, the following points for them to consider and pass upon: "Was the plaintiff or was Mrs. Burleigh indebted to Kellogg, Baker, or any of those other firms whose attachments and executions are relied upon here by way of justification, at the time of the mortgage to Lyon. Second. If you find that they were, what was the transaction between Burleigh and Lyon? Was that a valid transaction, or was it invalid? Was the mortgage given with an honest purpose, to secure Lyon's debt, or was it given collusively, and with a view to defeat Burleigh's creditors? Third. What was the character of the proceedings to foreclose the mortgage? Was that an honest transaction on the part of Lyon to recover his debt,--make his money,--or was it a transaction collusive in its character, for the purpose...