Whitney v. McConnell, 29 Mich. 12

Whitney v. McConnell

29 Mich. 12 | Mich. | 1874

Campbell, J.

Plaintiffs replevied a piano from defendants under the following circumstances: In December, 1871, plaintiffs made an executory bargain for the sale to John Eastman of Muskegon, of .the piano in question for four hundred- dollars, payable in installments of twenty dollars every thirty days. The contract contained this clause: “ It being expressly

understood that the said piano remains the property of the said Whitney & Company, until the full amount, as herein agreed, shall be paid, and that it shall remain at the residence of the said John Eastman at Muskegon, unlesB the written assent of said Whitney & Company is given to move the same.”

Then'followed some independent conditions-of forfeiture for non-payment, which are not important in this case.

In April, 1872, Eastman went to defendant Daniel McConnell, who was a pawn-broker at Grand Rapids, and wanted to borrow money on the piano, which he represented as his own and free from encumbrance. McConnell examined the city records of Grand Rapids, and found no record of any encumbrance there. He then advanced fifty dollars on it, and received possession, and the piano was found in defendants’ house, and replevied without demand. Upon these facts the circuit court gave judgment for defendants.

The case is like, in its important features, to' that of *14Couse v. Tregent, 11 Mich. R., 65, which has heen followed in several cases since. The contract created a bailment in Eastman, and the condition against removal was not only valid but necessary to secure the vendors from just such transactions as occurred here. The transfer and removal into the custody of defendants was a direct violation of his duty as bailee which made him a wrong-doer. Under such circumstances no demand was necessary, as the possession originated in a tortious taking. — Trudo v. Anderson, 10 Mich., 357.

Judgment must be reversed, and a new judgment entered in this court in favor of plaintiffs with one dollar damages, and costs of both courts.

Cooley, J., and Graves, Oh. J., concurred. Ohristiancy, J., did not sit in this case.