142 Mich. 127 | Mich. | 1905
Defendant and James Gilmore, copartners, were engaged in the grocery business in Bay City. This firm became a customer of the National Grocer Company (Gustin, Cook & Buckley Branch), changing to them from another concern upon an agreement that credit to the amount of $1,000 would be extended. In November, 1902, their indebtedness was about $1,500. Buckley, the manager of the creditor company, requested that this account be reduced to $1,000 by December 1st following. This was agreed to, and payments aggregating $380 made, and moneys were accumulating to pay the balance agreed upon. Defendant, Taitt, the business manager of his firm, had no knowledge that the creditor company was dissatisfied. A few days before November 28th, Buckley requested a chattel mortgage of Gilmore upon the Taitt & Gilmore stock. Several interviews were had without the knowledge of Taitt, the last one on the evening of November 28th, at which were present Buckley and Phipps of the National Grocer Company, their attorney, Mr. Weadock, Gilmore and Mr. Court-
“ After the unpleasantness' I went to Mr. Buckley and*130 said: ‘ Frank, I am dissatisfied with this sale, and I want my money back. You agreed to give us a lease, and you haven’t done so. The store has been broken into, and you agreed to give us possession, and we certainly have no possession, and we are disgusted with this, and I want my money back.’ He said: ‘ John, it would look bad on the face of it for us to pay you just at this time. It would look as though we were in league in some way or other, and to take the goods and then simply have us take them off your hands. Now I will compensate you for them so I will see that you lose nothing.’ Andthathedid, Ithink, on the 10th day of the month. He paid me back all but the money I had possession of; in other words, he made good to me the amount I had paid upon the purchase. I gave him credit for the cash I had received. I have not been paid one cent for my time and trouble.”
Relying entirely upon the question of the'fraudulent conduct of the National Grocer Company in this transaction, defendant withdrew all question as to the regularity of the foreclosure from consideration by the jury. Defendant, in questioning the good faith of the National Grocer Company and as among other things tending to show fraud on its part in obtaining the mortgage, claimed and offered to show that the firm of Taitt & Gilmore was not indebted to the Humbolt Milling Company, whose claim of $574 was included in the mortgage, which fact Manager Buckley knew; that Buckley, acting for his company, had forced the milling company to break a certain valuable contract of agency with defendant’s firm and taken the agency to his concern, whereby defendant’s firm had suffered great damage, and Buckley had been told by defendant the details of the defense to said milling company account by reason of breach of said contract; that Buckley’s concern was undertaking to drive them out of business. As tending to support this theory, certain letters in connection with the milling company account were offered in evidence. They were not admitted, nor was defendant permitted to show said transaction.
We think under the offer made the evidence should have been admitted. The obtaining of this mortgage
It was admitted in the case that the grocer company had requested Taitt & Gilmore to reduce their account to $1,000 by December 1st, and it was claimed that the account would be carried for that amount, and cash was to be paid for subsequent purchases. Under this claimed arrangement the account was reduced $380 and cash paid for a number of small orders. Defendant offered to show that if he had been given until December 1st, he could have paid the $171.25 balance. Defendant excepted to the ruling excluding such testimony. Defendant claimed that he was manager of the firm and as such had made this arrangement about which there is little dispute. It is : admitted that care was used by these parties to keep the matter of the attempt to get this mortgage from the knowledge of defendant, Taitt. This evidence was offered for the purpose of showing the fraudulent conduct of the mortgagee. The court should have allowed the evidence. If defendant’s testimony is believed, his firm had until December 1st to reduce the claim! His first knowledge of any dissatisfaction or different arrangement was on the morning after the mortgage was given. This evidence tended to show that defendant was in good faith fulfilling his agreement, and to show the fraudulent conduct of the grocer company, all of which defendant was entitled to place before the jury to be considered in determining the question of fraud in the case.
The several errors assigned upon refusal to give certain requests of defendant, and to portions of the charge of the •court as given, may he considered together, as all bear
Error is assigned to the instruction to the jury as to the proof required to show fraud. The court charged:
“Fraud can seldom be proved by direct evidence, and direct evidence is not always required of fraud. But fraud may be inferred from circumstances. While it may be inferred or deduced from circumstances, it ought not to be lightly inferred, nor inferred from slight circumstances, but the circumstances ought to be such that satisfy you that it exists. Fraud must be proved by clear and satisfactory evidence.”
All but the last sentence of this charge is correct. We think the use of the word “clear ” is erroneous and within the following decisions: Watkins v. Wallace, 19 Mich. 77; McNaughton v. Smith, 136 Mich. 368; Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 555.
Other assignments of error need not be considered.
Judgment is reversed, and a new trial ordered.