Child v. Emerson

99 Mich. 38 | Mich. | 1894

Grant, J.

Complainant and his son, on January 15, 1892, purchased the patent right of a certain milk aerator, for which they gave two promissory-notes for $250 each, one bearing date January 15 and the other ' February 20, 1892. Defendant Emerson purchased these notes before maturity. Emerson brought' two suits on these notes, one before Justice Kinney and the other before Justice Phelan, who occupied adjoining offices in Detroit. Both summons were made returnable on the same day. Complainant admits that he and his codefendant were served with the summons in the case brought before Justice Phelan, but asserts that they were never served with the other summons, and that they knew nothing about it until about, the time that the complainant's lands were advertised for sale under an execution issued under the judgment therein. The defendants appeared in the other suit, and two adjournments were had. Dpon the second adjournment that suit, was discontinued, and an agreement then entered into which is the subject of this controversy. Emerson took a. transcript oí the judgment, and filed it in the circuit •court for the county of Macomb, where complainant owned •some land. Upon learning of these proceedings, complainant filed this bill to enjoin the sale of his land and the collection of the judgment. The grounds for relief are that complainant and his son transferred to defendant the patent right, in' consideration that the two notes were to be surrendered and canceled. Defendant Emerson answered, alleging that he took the assignment of the patent as collateral security for the one note for which he had brought suit before Justice Phelan:

The decree to be entered depends entirely upon a question of fact, namely, what was the agreement? Complainant and his son both testify positively that the patent was conveyed in consideration of the payment of the notes. Mrs. Child, complainant’s wife, was present at a conversation between complainant and defendant on the day the arrangement was made, and testified that she heard defendant say that he would come in the next morning with the two notes, and settle the matter up. One Wright, a witness for defendant, testified on cross-examination that •defendant told him that he had bought the patent. Three witnesses for complainant testified that defendant told them he had traded the two notes, for which he paid $250, for 4he aerator. One other witness testified that defendant 4old him that he had bought it. The conveyance of the patent right was absolute in form, and expressed the consideration of $500. Opposed to this is the testimony of defendant and his wife. The testimony was taken in open court. We see no reason for reversing the conclusion reached by the learned circuit judge upon this question. It is conceded that the transcript of judgment filed in the circuit court of the county of Macomb was irregular and void.

It was elicited on the cross-examination of the complainant that at the time of the transfer defendant agreed to convey to him a half interest in- the patent, for which he agreed to pay $250, and paid $25 in cash. Defendant now insists that complainant is not entitled to the relief he asks until he has complied with this agreement. Defendant did not admit this agreement, nor set it up in his answer. His answer is in fact a denial of any such agreement, for he alleges that the' $25 was paid upon the debt due to him. But this agreement, if made, was a matter between complainant and defendant, and had nothing to do with the agreement made between the makers of the notes and the defendant.

Decree affirmed, with costs.

The other Justices concurred.