Harvey v. McAdams

Cooley, J: 1. The objection to the admission in evidence of the-chattel mortgage under which the plaintiffs claimed the property has no force. The ground of it was, that the declaration counted upon a conversion of plaintiff’s property without setting out the nature of their interest, and ivas not calculated to inform the defendants of what they would be expected to meet. But no declaration in trover undertakes to notify the defendant of the precise nature of the plaintiffs’ title, or what are the evidences of it. Those are matters of evidence merely. 2. We do not perceive that any improper evidence was admitted to show the agency of Babcock for Harvey & Coleman.' Indeed, the evidence on both sides, so far as it-is set out in the bill of exceptions, tended to show that he-was their agent. Babcock was not an officer, but was deputed to serve the execution in their favor; and though there is a conflict in the evidence regarding their request that he be deputized, there is no dispute whatever that Coleman, at least, knew he was acting for them in the service of [476] that writ. The claim that they repudiated all responsibility for Ms action, and refused to sanction it, while he had the writ, seems a very transparent pretense, and seems to indicate a purpose on their part to have the benefit of the collection if it succeeded, and to repudiate Babcock’s action only in the event of his action rendering him liable. Their actions plainly said to Babcock, if their words did not, that their expectation and desire was that he should go on with the execution; and they gave conclusive evidence of this desire in keeping for him property levied upon by virtue of the execution, and in' buying in one article on the sale. It was not necessary to find that both the partners assented to this; what was done by either in the collection of a partnership debt was presumptively with the sanction of the other. 3. There may be a cpiestion whether the statute (Comp. L. 1871, § 5507), authorizing the justice on the request of the plaintiff to deputize a person to serve process, can apply to executions, but we attach no importance to that question here. If it does not, the liability of all the parties was clear; and if it does, the party who thus selects the person who shall serve this writ, must, wo think, be held responsible for his action. • This person does not come in as an officer, acting under the responsibility of an official oath and bond; and the authority to appoint him would be open to grave abuses if the opposite party were by such appointment to be deprived of the usual remedies for illegal action and to have none against the plaintiff. Officers are chosen by the people, but this man is selected by one of the parties to exercise an authority peculiarly liable to abuse; and it is but just and reasonable that the party thus making the selection, and with the consent of the justice vesting Min with a somewhat arbitrary authority over the property of another, should be responsible for his behavior. Wo find no error in the ruling of the court on this point, and none in the admission of evidence of what Babcock said when he returned the first execution and took out the second. The •testimony regarding the place where the hack formerly driven [477] by Babcock was kept was perhaps immaterial, but it could not injure tbe defendants; it only tended to support the inference of law that Harvey & Coleman were jointly concerned in what Babcock did. A similar remark may be made regarding the evidence called out on the cross-examination of Babcock, the purpose of which was to show at what precise stage in the various transactions Coleman paid back to Babcock moneys which had been paid over to him as the proceeds of the sale. This was only material as tending to rebut the inference which defendants sought to have the jury draw from the fact of the money being paid back, that Coleman repudiated Babcock’s action. There was no room for any such' inference, even on defendants’ evidence, and any thing introduced to overcome it, if it affected no other part of the case, was merely idle. 4. The concession by the plaintiffs, made on the trial, that Babcock’s levy was legal, did not preclude their taking the objection to the validity of the sale. When mortgaged goods are levied upon by virtue of an execution against the mortgagor, it may be necessary to take possession of distinct articles separately; and this is not illegal. The concession that the levy in this case on a part of the goods was legal went no further than this. » But such a levy must be considered incomplete; at least, conceding its legality, it would not justify a sale of distinct articles separately.—Worthington v. Hanna, 23 Mich., 530. . 5. Any parol understanding that might previously have existed as between the mortgagor and mortgagees regarding the possession of the mortgaged property, could not avail these defendants. Nothing in the case indicates that the understanding was not subject to be terminated at will; but whether 'that was so or not, it was put an end to when third parties converted the property. 6. After what has been said it is scarcely necessary to add that there was nothing in the evidence -which entitled Coleman & Harvey to have the question of their responsi [478] bility for Babcock’s action submitted to the jury. The undisputed facts rendered them liable. 7. There is nothing in the objection that the judgment was prematurely entered. It was, in fact, entered fifteen days after the verdict; but the time of entering it was a matter of practice within the discretion of the court. The judgment is only provisional; it does not deprive a party of the right to move for a new trial. This is recognized by People v. Clerk of Bay County, 14 Mich., 169. We take no notice of the fact of the plaintiffs having .assigned their demand after verdict and before judgment, as the fact is not shown in such manner as to make it a part of the record. The judgment should be affirmed, with costs. The other Justices concurred.