Aspell v. Hosbein, 98 Mich. 117

Aspell v. Hosbein

98 Mich. 117 | Mich. | 1893

Hooker, C. J.

The plaintiff’s son, being engaged in a business which he found unprofitable, so told the plaintiff, and agreed to let him have the property in dispute, to apply upon an indebtedness due him for money lent to and paid for the son to the amount of several hundred dollars. This talk occurred upon Sunday, and, in accordance with it, the plaintiff on the next day went to the store, and proceeded to remove the property therein. On Tuesday *119the property in question, before it was removed by the plaintiff, was levied upon by defendant, a constable, under an attachment against the son, dated September 29. On October 5 the plaintiff's son executed and delivered to plaintiff a bill of sale of the property. Upon October 9 the justice quashed the attachment proceedings for a defect in the affidavit, when a new writ was issued, and levied upon the property, which remained in the officer's possession. Plaintiff thereupon brought replevin in the circuit court, and obtained a judgment, from which the defendant appeals. In addition to the property in the store, the writ covered a gray mare, a harness, and a wagon.

It is contended by appellant:

1.. That the plaintiff took no title under the Sunday arrangement, for the reason that it was void, and that the *120transaction on Monday was a mere voluntary delivery, not rising to the dignity of a contract.

2. That the bill of sale on October 5 was void as against ■creditors, because not accompanied by delivery of the property.

3. That the defendant came lawfully into possession of the property under his first writ, and that a demand was necessary before replevin could be maintained.

4. That the bill of sale was invalid, being made with the intent to hinder, delay, and defraud creditors.

5. That the court erroneously instructed the jury that the burden of proof was upon the defendant to show fraud.

6. That he refused to instruct that, if the plaintiff was a creditor of the son, he could not recover if the bill of sale was made with the intention of defrauding other creditors.

It is undeniable that the negotiations that occurred upon Sunday were invalid, and passed no title to the plaintiff. Our attention is called to no evidence that shows a sale of the property to the plaintiff before September 29. The evidence shows that without further talk than that of Sunday the plaintiff proceeded to remove the property, and that his son saw him doing so without objection. It is settled law in Michigan that a Sunday contract is a prohibited transaction, the illegality of which forbids it being made a sale by a mere delivery later. The delivery must be accompanied by circumstances which in themselves supply the necessary elements of a contract, without depending upon the Sunday transaction for any essential. Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Id. 355; Benedict v. Bachelder, 24 Id. 425; Allen v. Daffie, 43 Id. 1; Arbuckle v. Reaume, 96 Id. 243; Winchell v. Carey, 115 Mass. 560. It being settled that there is no proof of a sale .before September 29, it follows that the court should not '.have left that question to the jury, as he did, by giving the plaintiffs tenth request.1

*121Appellant further complains of the instructions upon the ¡subject of fraud, claiming that under How. Stat. § 6190, the plaintiff had the burden of proof upon him, and was required to show that the bill of sale was made and received in good faith.* 1 It should not be overlooked that when this bill of sale was given the goods were not in the possession or under the control of the son. He had permitted the plaintiff to take possession, and the defendant had wrongfully seized the property, and withheld it from the plaintiff. As against the defendant, the plaintiff had the right to the possession at all times prior to October 9, and might have maintained replevin upon the facts then existing. The son had placed the property in the plaintiff's possession, and the bill of sale was apparently designed merely to perfect a title which the Sunday contract failed to convey. We think this is not a case in which it can be held that the transaction of October '5 must be presumed fraudulent because the son did not deliver goods of which he had not actual possession, and which the defendant was preventing him from controlling by his own wrongful act. But the question of actual fraud was in the case, and should have rested upon the character of the transactions subsequent to Sunday, including October 5; and this the charge recognized.

No demand was necessary. The taking and detention under the first writ of attachment were tortious, and while the writ, if good upon its face, might have protected the officer from personal responsibility, he cannot base a right to possession upon it if the writ was founded upon a void affidavit. Beach v. Botsford, 1 Doug. 199; Le Roy v. City Railway, 18 Mich. 233; Gidday v. Witherspoon, 35 Id. 368; Adams v. Hubbard, 30 Id. 104.

*122As already shown, it is possible that the verdict was based upon the transactions previous to September 29, and for this reason the judgment must .be reversed, and a new trial ordered.

The other Justices concurred.

“If James Aspell, however, so bought and had such possession before September 29, 1891, then, even though Thomas Aspell intended in making the sale to cheat and defraud other creditors, that does not afford a defense to the defendant, unless plaintiff *121participated in such intent, and bought the property for that purpose, and not for the purpose of • satisfying the amount due to him, plaintiff.”

See Hauser v. Beaty, 93 Mich, 499.