138 Mich. 548 | Mich. | 1904
The facts in this case, so far as material for an understanding of the points involved, are as follows: Frank E. Horning, a young man of 26 years, was engaged in the retail hardware business at the village of Lenox. He desired to enlarge his business, and in
In December, 1901, Mr. Adams, representing the defendant company, came to Lenox in reference to this claim, and endeavored to get James L. Horning to return the goods. The latter stated that he had no right to do so, inasmuch as Mr. Heenan had a chattel mortgage on all the goods. The defendant then claimed the goods, were obtained by false representations, and proceeded to replevy the goods, but did not tender back the money received as part of the purchase money therefor. After the goods were removed from the store, plaintiff made a demand for the same, and, upon the demand being refused, brought trover for their value and recovered judgment; the trial judge directing the jury to return a verdict for
Some testimony was given below tending to show misrepresentations on the part of Frank E. Horning at the time of the purchase of the goods. There is no evidence that plaintiff knew anything of the alleged fraud. Besides plaintiff’s positive evidence to that effect, and that he had never before heard of the defendant company, it was made to appear by defendant’s evidence that he could not have known of any such claim, because it was not made until December, 1901. Mr. Adams, defendant’s agent, testified that he had exclusive charge of this matter; that after the sale he was not at Lenox again until he heard of the bill of sale to James L. Horning; that it was not until December 13th, when he came to Lenox, that the defendant first discovered the falsity of the alleged misrepresentations ; and that no claim of fraud was made until December 18, 1901, defendant company up to that time believing the statements to be true.
There are 29 assignments of error, but, as these are grouped by the counsel for appellant, we need not discuss the assignments in detail.
The first point discussed is that arising over the ruling of the court in setting aside plaintiff’s default, which defendant had entered because of plaintiff’s failure to furnish a bill of particulars. The answer to this contention is that not only does the record fail to show an exception to the ruling, but the inference is a fair one that defendant was content with the order made, and acted upon it in amending his own plea, which was apparently all that defendant asked as a condition to the vacation of the default.
It is next argued that error was committed in admitting in evidence the draft which furnished the consideration of the chattel mortgage. The testimony was plainly competent, but here, again, the record fails to show any exception to the ruling.
Error is assigned upon the ruling of the court admitting
The next ruling to which an exception was taken was one permitting a witness to use a memorandum in bis own handwriting for the purpose of refreshing his recollection. This ruling was right.
None of the other minor assignments merit discussion. Many of them are not based on proper exceptions, and, when exceptions are taken, the questions relate to rulings which became immaterial if the court was justified in directing a verdict.
We think the ruling directing a verdict was clearly right. The mortgage was given for a valuable consideration. There was no notice to or knowledge possessed by plaintiff of any fraud committed by Horning. Before any action was taken by defendants to reclaim the goods, their agent had notice of the mortgage which was filed at about that time. No credit was extended, nor was any action of defendant taken, on the strength of the absence of the mortgage from record. The mortgage was therefore good as against defendant. First Nat. Bank v. Guntermann, 94 Mich. 125. That the plaintiff was entitled to priority over defendant—the plaintiff being a bona fide mortgagee, and defendant having, by means of the purchaser’s fraud, been induced to invest the latter with indicia of ownership—see Zucker v. Karpeles, 88 Mich. 430; Hoffman v. Railway Co., 125 Mich. 201-205.
The judgment is affirmed.