52 Mich. 633 | Mich. | 1884
Plaintiff replevied of defendant a shingle-mill. On the trial plaintiff deduced title under a bill of sale from Spaulding S. Ackles, bearing date April 6, 1882, and purporting to make an absolute transfer of the title. Ackles at the time was in possession and was operating the mill. He was indebted to the plaintiff, according to his testimony, in a considerable amouut, and, as he testifies for
In submitting the case to the jury the circuit judge failed to bring out the distinction between transfers of chattels by absolute sale and those by way of security, and he charged the jury at the plaintiff’s request, that if they found he took the mill from Acides for the purpose of paying him for money that Acides owed him, and to indemnify him for liabilities which he agreed to pay for Acides, and without any intent to hinder, delay or defraud the creditors of Acides, their verdict should be for the plaintiff. This could only be true if the sale was absolute; for the statute provides that “ every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an actnal and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage, or a true copy thereof” shall be duly filed. IIow. St. § 6193. Good faith in the mortgagee does not protect the unrecorded transfer which conies under this statute. Haynes v. Leppig 40 Mich. 607; Fearey v. Cummings 41 Mich. 383; Cooper v. Brock 41 Mich. 491; Sut
The defense offered evidence -to show that a portion of the demands for which the attachments were sued out was contracted after the giving of the bill of sale, and in reliance upon the possession and apparent ownership of Acides. This was not received, but we think it should have been. The use of any such credit as the apparent ownership of Acides would give him, ought to have been anticipated by the plaintiff as a possible occurrence, and it might well be argued to the jury that plaintiff should have given some degree of notoriety to the transfer. The fact that persons continued to trust Acides without knowledge of any transfer, when they would have refused if they had known of it, is a circumstance bearing strongly upon the plaintiff’s good faith.
The plaintiff delayed the replevy of the mill for three months, and he claimed on the trial to recover as damages the profits he might have made in the interval. The defense objected to the proofs offered, and referred to the decisions in Allis v. McLean 48 Mich. 428 and McKinnon v. McEwan 48 Mich. 106, as authority against them. These cases are said not to be applicable, because they were suits upon contract, while the present is a suit sounding in tort. A distinction is undoubtedly to be taken between actions upon contract and actions of tort, in all cases where malice, express or implied, is an element; but where parties are in good faith litigating disputed rights, and there is a choice of remedies, the rule of damages ought not to depend upon the form of l’emedy the party has selected. This plaintiff elected to retake the property in an action sounding in tort; he might have waited until a sale and sued in assumpsit for the proceeds; but in either case the facts in controversy would have been the same, and the
It was said, however, that this language is not applicable to the present case, because Acides when he sold to the plaintiff had an unfulfilled contract for cutting shingles, upon which it was possible to estimate the profits with reasonable certainty. This contract was transferred to the plaintiff, [and] he was allowed to show, by the testimony of Acides and others, that the profits in filling it would be ten dollars a day. He was also permitted to give similar testimony without regard to that contract. We have looked through the evidence, and are of opinion that no better, case could be taken for an illustration of the worthlessness of this standard for the estimation of damages. It conclusively appears from it that the estimated profits could only be made under the most favorable circumstances; that the contingencies which stopped operations or rendered them unprofitable were numerous; and finally that it was
We think.the estimates of profits were not proper evidence.
The judgment must be reversed and a new trial ordered.