Rossman v. Ward

210 Mich. 426 | Mich. | 1920

Fellows, J.

(after stating the facts). There are numerous assignments of error but under the well recognized rule we shall only consider those relied upon by appellant in his brief. We need not consider the effect to be given the filing of the chattel mortgage without having attached to it the affidavit required by the statute (8 Comp. Laws 1915, § 11988), or whether the proof sufficiently established that the original mortgage as filed did not have such affidavit attached, as the trial judge disposed of this feature of the case upon the ground that defendant had actual notice and therefore whether he had constructive notice or not was unimportant. Defendant, in answer to a question asked by a juror as to whether he made any attempt to find out whether the Rossman claim had been satisfied, replied that he did not, and added that he never thought of it until after he had paid the money. While this answer was not in strict accord with other testimony given by defendant, it is urged by defendant’s counsel that, when taken in connection with other testimony, it makes the question of bona fides a question for the jury. The difficulty with defendant’s contention lies in the fact that he is invoking the rules of the law merchant, of negotiable instruments, to a case not involving commercial paper. We are not here dealing with the purchase of a promissory note in due course or with what constitutes mala fides in such purchase. We are here dealing with the purchase of personal property upon which the plaintiffs had a lien, of which lien defendant had actual notice before he purchased the property. That the rule is different is settled by this court. In Detroit Nat. Bank v. Union Trust Co., 145 Mich. 656, it was said:

“It is a general rule applicable to transactions not involving commercial paper, that where one has notice of facts which would put an ordinarily prudent man upon inquiry, he cannot be considered a bona, fide purchaser, if he neglects to take such care of his own interests as an ordinarily prudent man would do, but that rule has not been applied to commercial paper.”

In the instant case the proofs are undisputed and it is admitted that when defendant first saw the car and negotiated for its purchase he was informed that plaintiffs owned it or had a claim upon it; he saw one of plaintiffs and was unable to make satisfactory terms of payment; about two weeks later a stranger offered .'him the same car he had tried to purchase of plaintiffs and told him it was the same car. He says he did not know whether this stranger owned the car or not. He claims to have then bought it without inquiry as to whether plaintiffs’ claim had been. discharged or not. Under such circumstances he is not a bona fide purchaser, and the fact, if it be a fact, that in his anxiety to acquire the car on favorable terms he forgot the plaintiffs’ claim, his negotiations with them, or that he had notice of such claim, does not alter the situation. He was not a bona fide purchaser and the trial judge correctly disposed of the case.

The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.