46 Mich. 29 | Mich. | 1881
This case began in justice’s court where Dunckel replevied from Brown a horse which he claimed as owner. Brown defended in the right of Roehm & Davison for whom he was agent. Upon trial on appeal in the circuit court it was shown that one Malone was formerly the owner of the horse; that on April 20, 1879, Malone was indebted to Roehm & Davison, and gave them his promissory note for $200, payable -with interest six months from date; that on November 21, 1879, this note remained unpaid and Malone was also indebted to Roehm & Davison on account; the sum with the amount of the note being in all about $37» ; that to secure the payment of the whole sum Malone on .that day gave to the creditors a chattel mortgage upon the horse and other property, the condition of the mortgage being that the indebtedness with interest should be paid on the 20th of March, 1880 ; that the dealings between the parties continued and the indebtedness increased until March
Previous to this transaction, and in February,. 1880, Dunckel had bought the horse of Malone with knowledge of the mortgage. No question is made in this case of his right to the horse unless it is still subject to the mortgage lien. Whether it is or not depends upon the circumstances attending the giving of the third mortgage. It was testified by Malone that Brown, as agent for the creditors, called upon him to take the new mortgage; that the amount then due was $594.91, and for this sum a note was given and also a mortgage on the horse and other property, to secure the payment within, thirty days. Brown then, as agent for Boehm & Davison, receipted the account as paid by note, and the first note was surrendered to Malone. The witness also further testified “that at the time he gave said last mortgage he desired said Brown to release said horse from said first mortgage because he had sold said horse to Dunckel and received his pay, and that said Brown refused so to do, and told him that he did not purpose to release anything. That said Brown required him to include said horse in the third mortgage, and threatened to take it on the first unless he did so, but without assigning any reason why he so desired it included in said last mortgage.” Also “ that he understood, and thought Brown also understood, that said last mortgage was to be received by Boelnn & Davison in the place and stead of the first two.” Brown was also sworn as a witness, and testified that he took possession of the horse under the first and third mortgages.
It was contended before the jury by Dunckel that the demands for which the first mortgage was given were
On the whole we cannot say that any error was committed, and the judgment must be affirmed with costs.