105 Mich. 523 | Mich. | 1895
A firm by the name of Livingston & Block was engaged in the dry goods amd retail cloak business in the city of Kalamazoo. In the summer of 1893 plaintiffs sold to this firm cloaks of the value of $2,728.50, shipping the same in July or August. About August 29 the plaintiffs learned that Livingston & Block had purchased a much larger amount of goods than formerly, and that they had been shipping goods away. Munzer thereupon went to Kalamazoo; intervewed Livingston & Block; at first tried to obtain payment, although the purchase price was not due until January following, by informing Livingston & Block that they were in need of money, and offering a large discount for cash payment, and, failing in this, charged them with shipping away goods, and demanded a return of at least a part of the goods which plaintiffs had sold to them. Livingston & Block admitted to Munzer that they had shipped away goods, but none purchased of the plaintiffs, and there is no evidence-
“Whereas, R. Munzer & Company, of Chicago, Illinois, has heretofore sold and shipped to Livingston & Block,, of Kalamazoo, Michigan, two bills of cloaks, one amounting to $71 and one to $2,657.50, said bills being dated December 1, 1893, due in 30 days, with 7 per cent, discount if paid in 10 days and 6 per cent, discount if paid in 30 days; and
“Whereas, a misunderstanding has arisen between the parties in regard to said bills of cloaks; and
“Whereas, it is desired by all parties to settle said dif-. ferences amicably:
“Now, therefore, it is hereby agreed between the parties that said Livingston & Block shall return to said R. Mun-' zer & Co. $1,600 worth of said cloaks, and that the same shall be received by R. Munzer & Co. in payment of said bills to that amount, and that said Livingston & Block, shall keep the balance of said cloaks, and shall pay for the same upon the terms of the original sale; that is to say, they shall pay for the same on January 1, 1894, and by so doing said Livingston & Block have a discount of 6' per cent., and, if said Livingston & Block so desire, they may pay for said cloaks on December 10,1893, less a dis-. count of 7 per cent. The cloaks that are to be reshipped' to R. Munzer & Co. are to be shipped this day. And in consideration of the foregoing said R. Munzer & Co. are not to bother or disturb said Livingston & Block in the> possession of the cloaks retained by them, or to bring;*526 suits for the recovery thereof, until the bill for the same becomes due, as herein agreed.”
Livingston & Block reishipped the goods according to this contract. On September 18 Livingston & Block executed a chattel mortgage on the entire stock to the defendant, Stern, as trustee, to secure certain alleged creditors, most of whom were relatives of either Livingston or Block. Between that date and the close of the month 15 replevin suits were brought against Stem by the creditors of Livingston & Block to recover goods claimed to have been purchased fraudulently. Plaintiffs also brought this. suit of replevin, and recovered $849 worth of their goods out of $1,128.50. Verdict and judgment were for the plaintiffs.
For this reason judgment must be reversed, and a new trial ordered.