Flood v. Butzbach

Moore, J. September 21, 1895,. Daniel Cook gave plaintiffs a chattel mortgage upon a quantity of staves and other property. This mortgage was duly filed. It contained, in addition to the usual conditions of a chattel mortgage, the following clause: “With the understanding that the said heading and staves, as they are finished, shall be shipped and sold in the best market that can be procured by the said Daniel Cook; but all such shipping, sale, and returns shall be in the name of James H. and Thomas P. Flood, and this lien shall be on all such heading and staves in or as above described.” Cook sold to defendants staves worth $34.50. After they were sold, and before payment was made, defendants were garnished. Plaintiffs asked defendants to pay them [614] for the staves. Defendants declining to do so, plaintiffs sued defendants, declaring on all the common counts in assumpsit. . Defendants requested the trial judge to direct a verdict in their favor. He declined to do so, and directed a verdict in favor of plaintiffs. Defendants appeal, and insist plaintiffs could not recover under the declaration as framed; citing Randall v. Higbee, 37 Mich. 40; Carpenter v. Graham, 42 Mich. 191; Warner v. Beebe, 47 Mich. 435; Tate v. Torcoutt, 100 Mich. 308. It is undoubtedly true that a mortgagee cannot recover, under the common counts in assumpsit, for mortgaged goods sold, where the chattel mortgage contains only the usual conditions; but this mortgage, while it authorized a sale of the goods by the mortgagor, expressly provided that the sale should be in the name of the mortgagees, and that their lien should follow the property. Under such circumstances, we think it can well be said that the mortgagor was acting as the agent of his principal, the mortgagees, in making the sale, and that they confirmed the sale, and were entitled to recover under the common counts in assumpsit. See Fuller v. Rhodes, 78 Mich. 36. Judgment is affirmed. The other Justices concurred.