Jones v. Kemp

Campbell, J. This was an action on the case, for fraud in the purchase of wheat. The declaration contains 3 [10] counts, all of which under various forms set out that defendant by false representations as to his credit procured, plaintiff to sell and deliver certain wheat to him. The facts found by the amended finding are that in October, 1875, an arrangement was made whereby plaintiff was-to deliver to defendant, who was a miller, four hundred and fifty bushels of wheat, to be paid for on delivery or at any subsequent time when plaintiff demanded payment, at the-Grand Bapids price current at the time of demand. It was-understood that .defend ant might — as he did — use the wheat in his milling business to mix with other wheat of a different character for immediate grinding. In June, 1876, plaintiff demanded his pay at the current rates, and was-induced to take a bank check at 10 days, by representations-of solvency and prompt payment. In that interim defendant stopped business and made an assignment, having been insolvent, for some period not named, but earlier than June 1. The court on this held the deposit a bailment and the transaction of June 1 the only sale, and gave judgment, for plaintiff. We think this was erroneous. The plaintiff reserved no-right to recall his wheat or any wheat or flour in its place. Defendant reserved no right to return it actually or in kind-lie was bound at all events to keep it, and to pay for it on demand, while the money was payable without contingency. This was a sale and delivery at once, and without any credit’ on which defendant could rely. ITe was bound to have his-money always ready, and to pay when called on. There was no fraud shown in the original dealings. If any fraud was committed at all it was in getting an extension of time on a matured debt. This is not the fraud charged. Had defendant refused on the 1st of June to make payment, plaintiff’s only remedy would have been by action for the price. He could not have reclaimed the property. The action therefore was misapprehended. Judgment must be reversed, and judgment entered for defendant on the finding, with costs of both courte Graves, O. J. and Cooley, J. concurred.