Wright v. Towle

• Decision Date: 20 October 1887
• Citation: 34 N.W. 578,67 Mich. 255
• Court: Michigan Supreme Court
• Parties: WRIGHT v. TOWLE and others.

34 N.W. 578

67 Mich. 255

WRIGHT v. TOWLE and others.

Supreme Court of Michigan

October 20, 1887

Error to circuit court, Wayne county.

Haug & Springer, for plaintiff and appellant.

Corliss Andrus & Leete, for defendants.

SHERWOOD J.

Wright Bros., on or about the fourth day of April, 1885, gave a mortgage to the plaintiff on a stock of goods, to secure the payment of a note of $700 for money obtained about a year before, the note being payable on demand. The firm of Wright Bros. was composed of Cyrus Wright, who was husband of the plaintiff, and his brother, Charles O. Wright. The firm, in the month of March, 1886, were unable to pay the note and mortgage. The plaintiff demanded payment, but failed to obtain the same, and thereupon plaintiff commenced a foreclosure of her mortgage by taking possession of the mortgaged property, the mortgagors turning out to her the mortgage property upon her claim. The plaintiff had been in possession of the goods about four or five days, as she testifies, when the defendants, having obtained a judgment against her husband and his brother for goods sold, took out execution thereon, and levied it upon the goods of the plaintiff thus taken and turned out to her upon the mortgage and took possession of the same, and locked up her store. Defendants refused to deliver the goods to plaintiff on demand, and, after keeping them several days, the plaintiff brought this suit for their recovery in the Wayne circuit court, where the cause was tried before a jury, and the defendants were allowed to recover the amount of their execution, $42.72, and the plaintiff brings error.

Two errors are assigned upon the rulings of the court in rejecting testimony offered upon the trial. It was the contention of the defendants that the mortgage was fraudulent as against the creditors of Wright Bros., that the plaintiff gave no consideration for the same, and that she never took possession of the mortgaged property; and, for the purpose of showing these three things, she was cross-examined at considerable length. Among other things, it appeared from her testimony that she and her husband lived in the second story of the building occupied by her as a store; that when she was married she had five or six hundred dollars of her own money, and an interest in a farm, and since has obtained an interest in a house and lot in Detroit; that the year before the mortgage was given to her, she loaned Wright Bros $100, and that her mother-in-law loaned to them $600; that when she took the security the mother-in-law desired her to take it for both amounts, and transferred the $600 claim to the plaintiff, and took plaintiff's note back for the same, and the plaintiff took the mortgage for $700. On her cross-examination the plaintiff was interrogated as to what she gave for the mother-in-law's claim, and as to what moneys she had paid upon the note given to the mother-in-law, and the amount thereof, and dates, before the defendants levied upon the goods, and the moneys she had received, and who from. On the redirect examination the plaintiff's counsel sought to introduce her bank-book for the purpose of showing the receipt of the money and the dates. This was not permitted by the court, and plaintiff's counsel excepted. The court also refused to allow the witness to produce the book containing these facts, and a statement of the amount of money she had paid to her mother-in-law before the defendants' levy upon the goods. Under the circumstances of this case, the proof should have been permitted. The cross-examination of the plaintiff upon this subject was evidently made with a view to discredit the plaintiff's testimony, and in the re-examination she should have been permitted to give such facts in evidence as would tend to support her statements, and remove any impressions in that direction the cross-examination may have made. What the plaintiff paid, and promised to pay the mother-in-law, constituted the consideration she paid for the mortgage, which the defendants sought to impeach by showing no consideration. The testimony offered was not only proper, but material. Both books were admissible for the purpose offered, and should have been received. This disposes of the eleventh and twelfth assignments of error.

The plaintiff's first request was sufficiently given by the court. The requests of the plaintiff will be found in the foot-note. ^[1]

In view of the course taken by the court in the charge, the plaintiff's second request should have been given. So much of the testimony as was referred to and particularly pointed out by the court in the charge on the part of the defendants fully warranted the counsel for the plaintiff in making this request, and made it the duty of the court to comply with the request.

The third request was properly refused. I do not think as a matter of law the conclusion reached in the request necessarily follows from the facts stated therein.

The plaintiff's fourth request should have been given for the reasons stated why the second request should have been complied with. It further states the facts correctly upon which the conclusions of law are based, and they are undisputed as claimed.

The plaintiff's fifth request on the undisputed facts should have been given. No witness denies that Wright Bros. had the money as claimed by the plaintiff; nor that the mortgage was given to secure it. C.O. Wright is the only witness who, in giving testimony, cavils upon that subject and finally admits, upon his cross-examination, that the mortgage was given to secure the payment of the $700 to the plaintiff. Leppig v. Bretzel, 48 Mich. 321, 12 N.W. 199. It is true the wife cannot be bound by the unauthorized statements of her husband regarding her separate property. Dawson v. Hall, 2 Mich. 390; Glover v. Alcott, 11 Mich. 470; King v. Moore, 10 Mich. 538; Benson v. Morgan, 50 Mich. 77, 14 N.W. 705; Gavigan v. Scott, 51 Mich. 373, 16 N.W. 769. But it must be recollected in this case that the wife's right to his property is derived by contract with parties, one of whom is her husband. It is not the case of a wife claiming title or possession by...