55 Mich. 463 | Mich. | 1885
. The Prentiss Lumber Company was ■organized March 22, 1882, and continued to do a lumbering
On the 5th of September the president of the company wrote the defendant he could turn him out lumber to pay all his claims; and on the same day defendant telegraphed the president to file the mortgage, or sell and deliver to his agent 200,000 feet of lumber, upon receipt of which the company delivered to defendant’s agent the lumber, and immediately notified defendant of the fact. On the 7th of September- the company sent to defendant an account of the sale and transfer of the lumber, accompanied by a receipt for the same, given by his agent. On the 11th of. September, 1883, the defendant went to Alpena, ratified i the sale and transfer of the lumber to him, and settled with the company, and received from it the full amount of his
The defendant returned to Detroit, and delivered to the company’s attorney there, as agreed by the parties, the notes and other papers he held, evidencing the indebtedness to him. The following endorsement is written across the face of the large note accompanying the chattel mortgage and signed by defendant: “ Canceled by settlement of notes and obligations for which this note and chattel mortgage of the same date was given as collateral security.” Endorsed upon the mortgage'was the following: “Paid on the within, September 7, 1883, by sale and delivery to my agent, Mr. Walker, subject to my order (J. D. Standish), eighty-nine piles lumber, on docks of the said Prentiss Lumber Company, guaranteed to contain 2,089,000 feet, for the sum of $26,641.72, free of storage, and insurance paid until shipped:”
It further appears from the record, which contains all the testimony in the case, that the defendant had sold all the lumber but a few thousand feet, which had been taken from him upon a writ of attachment, at the time- proceedings in this case were instituted, and that the lumber was not worth the amount of the defendant’s claim. The plaintiffs were creditors of the Prentiss Lumber Company, and became such between the 1st and 15th of September, 1883, and on the 5th of March, 1884, commenced suit against the company for the sum of $3750.84, and on the same day instituted the garnishee proceeding against the defendant in this suit, claiming that he had lumber belonging to the Prentiss Lumber Company in his possession and under his control, or the proceeds of lumber sold, which he had taken upon a fraudulent and void mortgage made to him by said company, in amount sufficient to satisfy the plaintiff’s claim.
Judgment was takenñn the original suit on the 10th day of June, 1S84. The defendant filed his disclosure, and also
The indebtedness of the lumber company to defendant, at the time he took his chattel mortgage to the amount the defendant claimed, and for which he receipted (as he and the president of the company both testify), was not disputed by the plaintiffs. Neither is -it claimed by plaintiffs’ counsel that the company might not have lawfully paid its indebtedness to defendant by letting him have lumber for the amount, as it is claimed was done in this case. It was the theory of the plaintiff, however, upon the trial, that the defendant did not receive the lumber in payment of his claim, but that he received and took possession of it under and by virtue of his mortgage, which^not having been filed, was void as to the plaintiff, and no title to the lumber passed as against the plaintiffs’ claim. The fact whether the lumber was so received or not upon the mortgage was submitted to the jury by the court, and they were told that, if they found the plaintiffs’ theory correct, they would be entitled to recover. Defendant’s counsel insisted there was no testimony in the case to support such theory, and that the charge of the court submitting the question to the jury was unwarranted.
"We have examined the record in vain to find any testimony in the case tending to show that the lumber was turned out upon the chattel mortgage, or that the defend ant received or took possession of the same under or by virtue of his mortgage. Ve think the exception of defendant’s counsel
Courts are not allowed to make contracts for parties. Neither will they raise presumptions in favor of plaintiffs in garnishee proceedings, nor enforce -claims not necessarily within the provisions of the statute. The defendant, in this class of cases, is brought into court upon no common-law liability, but under circumstances purely statutory, and to protect himself against the liability the situation creates when his defense is perfect, not unfrequently subjects him to great inconvenience and expense without any adequate provisions for recompense or reimbursement. This statute cannot be regarded with special favor by the courts, and must 'be strictly construed. Such, certainly, must be the case when it is sought through the application of its provisions "to reach results more properly to be attained under the carefully guarded rules of a court of equity.' What we have said ■disposes of the case, and it would not be profitable to pursue -the many exceptions taken further.
The judgment must be reversed and a new. trial granted.
The charge requested was that “Under the testimony in this case the verdict must be for the defendant.”