Wellock v. Cowan

• Decision Date: 28 March 1929
• Docket Number: No. 127.,127.
• Citation: 224 N.W. 413,246 Mich. 45
• Parties: WELLOCK v. COWAN et al.
• Court: Michigan Supreme Court

246 Mich. 45

224 N.W. 413

WELLOCK

v.COWAN et al.

No. 127.

Supreme Court of Michigan.

March 28, 1929.

Error to Circuit Court, Sanilac County; Walter S. Wixon, Special Judge.

Action by Robinson Wellock, trustee, against Adam W. Cowan and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before NORTH, C. J., and FEAD, FELLOWS, WIEST, McDONALD, POTTER, and SHARPE, JJ.C. F. Gates, of Sandusky, for appellants.

Henry Baird, of Port Huron, and Alex B. Simonson, of Sandusky, for appellee.

SHARPE, J.

The facts in this case were stated at some length on a former review in this court ( 228 Mich. 575, 200 N. W. 116), and need not be here repeated. It was then held that ‘the court should have instructed the jury that Cowan signed the bill of sale, and as to plaintiff Cowan & Binkle were partners.’ A new trial has been had, and defendants now seek review by writ of error.

The bill of sale, given as a security, however, covered the following property: ‘All the stock of hardware, harness and implements belonging to us and now in our possession in our place of business in the village of Deckerville, Michigan.’ The plaintiff was present with the officer at the time the writ was executed by him.

It is the claim of the defendants that the sheriff at that time took possession of, and subsequently turned over to plaintiff, not only the personalty covered by the bill of sale, but a large quantity of goods then in the possession of the defendants, which had been acquired by them after the bill of sale was executed. In view of the instructions of the court to the jury, it seems well to here insert the testimony of what occurred at the time the writ was executed.

The plaintiff, after testifying that offers of compromise were made by him and refused, and the inventory made, said:

‘Mr. Cowan said he would have to take it up with his attorney, and he called Mr. Gates, and Mr. Gates came there and tole me, ‘Nothing doing; take the goods, get them out of the store.’ I said: ‘Well, I think I own the store. I have a deed to it; also a mortgage at the bank I represent.’ He said: ‘You haven't proved it. Take the goods out.’ There was nothing left but to take the goods, which I took them out.'

This statement of the attorney was made in the presence of the defendant Cowan. The officer testified:

‘Q. Now, relate that conversation, as you recall it, or the substance of it, if you can't remember the exact words, as to what items the defendant insisted you should leave out of the seizure. A. Well, there was-he wanted his books, the safe, and I believe his tools that he did the harness repairing with, and parts of leather that had been cut up being prepared for the fixing of harness, and the harness that were in there for repair.

‘Q. And on his request there did you leave these articles out of your seizure? A. We did.

‘Q. Did you leave out of your seizure every article that you were requested to leave out by the defendant Cowan? A. Yes.

‘Q. Then, Mr. Graham, all the items that you took under your writ there-there was no objection from the defendant-whether or not there was any objection from the defendant Cowan, any claim that they did not go with the stock of goods? Was there any such objection or such claim from Cowan? A. No, sir.’

The trial court, after alluding to this testimony, and the intermingling of the afteracquired goods with those in the stock when the bill of sale was given, instructed the jury:

‘And if you find in this case that the defendant, and it appears that they have had sole charge of the stock from the time of the giving of the bill of sale, mingled the new goods with those originally in stock, and they merged in such a manner as to render them indistinguishable, and either refused, or declined or omitted, to point out and separate them under the circumstances to which I have referred, prior to the seizure by the sheriff, and having been given an opportunity so to do, it would thereupon become the right of the mortgagee, the plaintiff in this suit, to take the entire stock, through the medium of the sheriff, acting under his writ.’

The description in the mortgage was general. Neither the officer nor the plaintiff, who accompanied him, could tell what, if any, goods had been added to the stock of the defendants. After making an inventory thereof, the officer left all that were claimed by the defendant Cowan. What he took was without objection, and it may well be said at the request or direction of Cowan's attorney.

Upon the trial the defendants offered proof that a very considerable part of the goods taken under the writ were not in the stock at the time the mortgage was given. Their counsel insisted that the mortgage was determinative of the rights of plaintiff, and that, waiving return, they were entitled to a judgment for the value of those taken not included therein.

The testimony above quoted justified the instruction given, and, if found to be true, warranted the verdict rendered. If goods had been added to the stock after the mortgage was given, and had become so intermingled that neither the officer nor the plaintiff could separate them, a plain duty devolved upon the defendants to do so. The inventory was shown to Cowan, and it would have been an easy matter for him to designate thereon such goods as he claimed were not included in the mortgage. He declined to do so. Neither did...