Lead Opinion
Between August 7 and December 10, 1883, the defendant, who was then engaged in the mercantile busi
On the eighth day of January, 1884, the plaintiffs brought replevin in the circuit court of the United States for Western District of Michigan, for all the goods sold by them to Myers, as hereinbefore mentioned, and their writ of replevin mentioned and described, and commanded the marshal to take and deliver to the plaintiffs each and all of the articles sold by them to him, as aforesaid. On this writ the marshal took and delivered to the plaintiffs goods therein mentioned, valued and appraised at $3,420, but which had been charged to defendant in said account at $4,104, and this latter sum made a part of the said $9,500.55. The goods so taken by the marshal were such as he found in the store, and were parts of all the different bills purchased, and he returned that he was unable to find the other goods in said writ mentioned. The plaintiffs grounded their replevin suit upon the claim that Myers did not intend to pay for the goods when he bought them, and that they had, before they brought their suit in replevin, elected to rescind the sale to him in consequence of his fraud, and gave notice of such election to the assignee before the writ of replevin issued. The replevin suit was tried upon this theory, the evidence sustained it, and the plaintiffs had judgment on the twelfth day of December, 1884.
On the fifteenth day of December, 1884, the plaintiffs filed their claim in the clerk’s office of Cass county, attached to which was a statement of their account. Plaintiffs filed their claim, basing it upon said account as for goods sold and delivered, stating that the consideration was for merchandise, and that the debt was contracted at the dates the goods were delivered, and made no mention of the suit in replevin, or the judgment therein, crediting the defendant, however, with $2,267.15, as of March 20, 1884, being, pre
These facts appeared by stipulation, and also that on the twenty-sixth of December, 1884, there was still in the hands of the assignee about $1,500, besides some collectible accounts and notes, part of which were not yet due, all of which still remained in the hands of the assignee; that the proof of claim should be considered as complying with the requirements of the statute, and the credit item of $2,267.15 should be considered as $4,104, leaving balance against the insolvent’s estate of $5,396.55, and all formal defects in said proof of claim were waived.
On the thirteenth of May, 1884, thirty-nine other creditors had proven claims against said estate, aggregating $15,368.67, and the assignee, after due notice, had declared and paid to them a dividend of twenty per cent, before the filing of plaintiff’s claim. The assignee gave all the notices required by law, of the assignment, and of proof of claims prior to January 15,1884, and filed proof thereof as required by law, and the plaintiffs had all the statutory notices required by law prior to that date.
On the twenty-third day of December, 1884, the assignee gave notice that the claim of plaintiffs as filed, would be contested, and the same was thereupon duly entered on the law side of the court as a cause in the name of said plaintiffs as against said defendant, and a trial was had of the same, under the statute, before the court without a jury. The circuit judge found, as a matter of law, upon the facts above stated, that the claim of plaintiffs could not be sustained, and entered judgment disallowing the same.
It is urged here that, under the facts, the plaintiffs are entitled to recover. We do not think so. Early in the proceedings, immediately after the assignment, the plaintiffs elected to rescind the sale of the goods, and brought replevin for the same on the theory that the fraud of the defendant had vitiated the sale, and that the goods belonged to them as if no sale had ever been made. After thus solemnly electing their remedy, and proceeding, through a trial, to judg
¥e do not deny the right of plaintiffs to collect the balance, the value of the goods not recovered by his action in replevin, in a proper action for the conversion of the same; but he cannot do so upon the claim filed with the assignee, counting upon the original contract for goods sold and delivered. If he should elect to waive the tort, and sue in assumpsit, he would yet have to declare specially averring the tort: Tregent v. Maybee, 54 Mich. 226.
The judgment of the court below must be affirmed, with costs.
Dissenting Opinion
{dissenting). I am unable to concur in the view that plaintiffs, by replevying a part of the goods which were fraudulently obtained from them by defendant, thereby lost their right to pursue him for ■ the balance by an action of assumpsit. The right which a defrauded vendor has to reclaim goods fraudulently obtained by the purchaser is not, in any just sense, an absolute ending of their relations. The case before us in no way differs from that where a vendor enforces a right of stoppage in transitu, which does not always secure all the goods sold. In such a case the law is now clear that the effect of the reclaiming of a part of the goods is not to destroy the vendor’s right to sue for the value of the remainder. It is more a matter of words than of substance, to hold that in such a case there is no interference with the contract itself; for, practically, a sale is very seriously interfered with by any retention or reclamation of the goods sold. Neither is it very important to inquire on what
In Powers v. Benedict, 88 N. Y. 605, the doctrine was recognized that a partial recovery of goods, under such circumstances, did not bar an action for the remainder. We held, ourselves, in Dayton v. Monroe, 47 Mich. 193, that a person suing for fraud was not bound to return a note which was given for the consideration as a condition of suing. And it seems to me that no doctrine can be sound which puts a person to a complete election at his peril, and bars him from any adequate remedy against the wrong-doer. Our statute concerning claims does not cut off any claim which can be regarded as an obligation of the assigning debtor, and the right to a judgment and relief is the same as if there had been no assignment.
In a case of this kind no mere technicality should stand in the way of justice. That defendant is responsible for the unrecovered goods is beyond dispute. Being so, I think there should be a recovery as claimed, and that the judgment should be reversed, and a new trial granted.