Wheeler v. Meyer

• Decision Date: 10 March 1893
• Citation: 95 Mich. 36,54 N.W. 689
• Court: Michigan Supreme Court
• Parties: WHEELER et al. v. MEYER et al.

54 N.W. 689

95 Mich. 36

WHEELER et al. v. MEYER et al.

Supreme Court of Michigan

March 10, 1893

Error to circuit court, Wayne county; George Gartner, Judge.

Action by Russell Wheeler and Frank E. Wheeler against Louisa Meyer and John F. Guilloz to recover on a bond given by defendant Guilloz, with defendant Meyer as surety, conditioned to sell certain goods, and turn the proceeds over to plaintiffs. From a judgment in favor of plaintiffs, defendants bring error. Reversed.

Albert J. Chapman, for appellants.

Corliss Andrus & Leete, for appellees.

McGRATH J.

John F Guilloz and Samuel J. Guilloz, as copartners, under the name of Guilloz Bros., had been in business as plumbers and steam fitters for some years, They were indebted to plaintiffs in the sum of $4,165, and December 27, 1888, to secure plaintiffs, gave to them a bill of sale of their entire assets, including accounts receivable, as well as tinner's tools, steam fitter's tools, and machines pulleys, and belting, office furniture and fixtures, safe engine and boilers, horse, wagon, buggy, sleigh, and harnesses.

On the morning of the next day, plaintiffs took possession of the stock and store, placing the same in charge of a constable. Plaintiffs then proceeded to inventory the goods and articles in the store, and posted notices of the sale thereof. John F. Guilloz did not aid or participate in the preparation of this inventory. Samuel assigned to John F. all his interest in the business, and John F. began negotiations for the possession of the stock, which culminated in the execution of a bond on January 10, 1889, by John F. Guilloz, as principal, and Louisa Meyer, as surety, to plaintiffs, the penal sum of which is $2,500, and the transfer of the possession of the stock to defendant Guilloz. Plaintiffs retained possession of certain accounts receivable, which were assigned to them to apply on the old account when collected. The bond recited the possession of the stock by plaintiffs under the bill of sale; the purchase of the interest of Samuel J. by John F.; the latter's desire to regain possession of the stock, "to be returned to him to take charge of the same, accounting to said obligees for the possession of said stock;" and concluded as follows: "Now, therefore, if said John F. Guilloz shall well and truly take possession of said stock of goods and chattels, an inventory of which is hereto attached, marked 'Exhibit A,' and made a part hereof, and shall honestly and in good faith sell the same for the best price obtainable, at not less than manufacturers' prices, delivered in Detroit, and shall pay over at once, from time to time, as the said stock may be sold, all the proceeds of sales from said stock and chattels mentioned in said Exhibit A, until the proceeds of such sales so paid over shall amount to the sum of two thousand five hundred dollars, then the preceding obligation to be null and void; otherwise, in full force and effect. It is understood, however, that the above is not to prevent the said obligees from retaking possession of said stock at any time in case they should feel insecured." Exhibit A, referred to in the said bond, listed the following articles, (the paragraphing and classification has been done for our convenience here:)

(1) 1 coulter cleaner; 8 hitching posts; 1 hoe; 4 covering bars; 1 gas engine, fittings, and beltings; 3 radiators; 1 box furnace, fittings; 18 register borders; 3 register faces; 8 registers; 1 large border; 1 box fittings; 8 No. 40 Palace Queen furnaces, 4 No. 44 ditto, and 2 No. 50 ditto, with fixtures for same; 1 water guage; 1 length 9-inch furnace pipe; 3 lengths 12-inch ditto; 2 sets furnace castings; 2 wall pipes; 20 horse weights; 1 scientific heater; 1 radiator; 2 borders; 2 registers; 2 register borders; 11 valves; 2 boxes stove bolts; 1 box screw hooks; 6 boxes pulleys; 4 boxes damper handles; 6 wire guards; 5 marble slabs; 12 sheets black iron; 4 lengths smoke pipe; 9 lengths T joints; 45 joints wall pipe; 1 stake; 19 pieces 9-inch pipe; 11 pieces 12-inch ditto; 14 12-inch elbows; 11 register boxes; 1 large box; fittings; 5 boxes tin; quantity of gas pipe; 1 lot furnace elbows, and pipe; 6 furnaces and fittings; furnace trimmings; 1 No. 40 furnace set up.

(2) 1 pair platform scales; 1 vise; 1 truck; 1 can paint; 2 office desks; 1 lock case and locks; 1 safe; 1 small coal stove and pipes; 4 office chairs; 1 letter press; 1 box bronze powder; 1 letter-press stand; 1 pair core boxes; 1 fishing rod; 3 directories; 1 gazeteer; 40 patterns; 1 cutting machine; 1 folder; 1 rolling machine; 1 crimping machine; 1 seaming machine; 1 stepladder; 3 pieces machinery; 1 drilling machine, and 8 drills; 1 pipe machine, and fittings; 1 emery grinder; 1 forge; 1 fire pot; 2 horses; 1 wagon; 1 buggy; 1 sleigh and harness.

(3) Quantity scrap furnace pipe; 28 old register borders; 12 old register faces; 2 broken marble slabs; about two bushels old steam fittings; 27 lengths old pipe; pieces of old furnace.

John F. Guilloz continued in business, making remittances to plaintiffs, buying other goods from them, without complaint, until November 23, 1891, when plaintiffs served the following written demand upon him: "Take notice that we hereby demand the immediate delivery to us of the property described in Exhibit A, a copy of which is hereto annexed, which exhibit of property was attached to a bond executed by you to us in the sum of twenty-five hundred dollars, ($2,500,) bearing date the 10th day of January, 1889, the conditions of said bond being such that said Guilloz was permitted to sell and dispose of said goods, and to pay to the undersigned the sum of twenty-five hundred dollars, ($2,500.) Also take notice that, in default of the delivery of said goods, you are required to pay the sum mentioned in said bond above described, and, in default thereof, legal proceedings will be taken to enforce the collection thereof." Exhibit A, attached to this written notice, is an exact copy of the inventory which it is claimed was pinned to the bond sued upon, and included all the property turned over to John F. Guilloz January 10, 1889. This suit was afterwards brought. Plaintiffs admit the payment by Guilloz of $475, and credited him with other items of cash received from assigned accounts over and above the amount necessary to reduce the old account down to $2,500, and recovered judgment for $1,813.16, the amount of the bond, less the cash payment of $475 and the aforesaid credits.

Defendants insisted (1) that there was no inventory attached to the bond at the time of its execution by either principal or surety that neither saw the inventory until the written demand aforesaid was made upon defendant Guilloz; that the inventory included property which was...