112 Mich. 693 | Mich. | 1897
Plaintiff was • a wholesale grocery house in Chicago, and defendant a retail grocer in Grand Rapids. This was an action of trover, brought to recover the value of about $1,200 worth of goods sold by plaintiff to defendant between October 30, 1894, and January 9, 1895. The goods were sold at different times during that period, and on different terms of credit, some of the invoices being on 60 days’ time, and others on 30 days’ time; the amount of the largest sale being $238.70, and the smallest one $4. The plaintiff claimed, and introduced evidence tending to show, that the purchases were fraudulent.
The court below was in error. As well stated by counsel for plaintiff: “The effect of defendant’s .position here
It appears, however, that the plaintiff replevied a part of the goods shipped in the last two invoices. It is therefore contended by defendant that, that suit having gone to trial on the merits, the plaintiff could not maintain trover for the balance of those particular invoices. But it appears that the goods for which trover was brought were not in the possession of the defendant at the time the writ .of replevin was issued and served, he having sold or disposed of them. The rule is well settled that in replevin no recovery can be had for goods not in possession of the defendant at the time the writ issues, except where the goods have been fraudulently disposed of or concealed to avoid the writ. In Sexton v. McDowd,
“The form and nature of the remedy suppose a case where the defendant unlawfully detains the property from the plaintiff, and not a case where the defendant cannot surrender, nor the plaintiff accept, possession; and it requires that, before the writ shall be executed, an affidavit shall be attached, showing, among other things, that the plaintiff is entitled to the possession of the property, and that the defendant, not a stranger, unlawfully detains it.”
In Hinchman v. Doak, 48 Mich. 168, the court said:
“When the defendant established the fact that he was not in possession when suit was instituted, he showed that he was entitled to have the case dismissed out of court, and to recover his costs.”
The following cases are in line with this proposition: Aber v. Bratton, 60 Mich. 357; Burt v. Burt, 41 Mich. 82; Morrison v. Lumbard, 48 Mich. 548; Bacon v. Davis, 30 Mich. 157; Gildas v. Crosby, 61 Mich. 413. The same rule is stated in other States. Williams v. Morgan, 50 Wis. 548; Coffin v. Gephart, 18 Iowa, 256.
It must follow that, under the circumstances of this case, the plaintiff is not estopped from bringing suit in trover for such property as was not taken under the writ of replevin. In Farwell v. Myers, 59 Mich. 183, Mr. Justice Morse recognized that very doctrine, though holding that assumpsit would not lie for the balance of the goods not taken under the writ. In Farwell v. Myers, 64 Mich. 234, the same case was in this court, only in different form. In the second case, 'claim was based upon the conversion of the property, and it was held that the action would lie. We do not understand that the court intended to hold in McBrian v. Morrison, 55 Mich. 351, that a recovery could be had in replevin for property known by plaintiff to be out of defendant’s possession, or out of existence, when the writ was sued out. The opinion was by Mr. Justice Campbell, who also wrote the last case of Farwell v. Myers, 64 Mich. 234,
The judgment must be reversed, and a new trial ordered.