Cunningham v. O'Connor

Grant, J. (after stating the facts). 1. Defendant claims that the transaction between plaintiff and Jenereaux was not a sale, but only a mortgage, and, not being recorded, is of no force as against the subsequent chattel [295] mortgage. There is no dispute as to the facts. The question, therefore, becomes one of law. We think the direction of'the court is correct, under Colwell v. Keystone Iron Co., 36 Mich. 51; WebSter v. Anderson, 42 Mich. 554 (4 N. W. 288, 36 Am. Rep. 452). 2. It is urged that, when the plaintiff rested his case, he had introduced no evidence of the valu,e of the property. The beans were seized either the latter part of October or in November, — the exact date is not shown by the record. This suit was tried in the circuit court the 8th of January following. Plaintiff did not see the beans after they were threshed. It was impossible, therefore, for him to give their exact condition and value. A witness who drew them from the farm said he shelled some of them, and they were nice and white. One witness testified that he sold beans that fall, for a dollar a bushel, not as good as the Watson beans. It is true that the court struck out the testimony of this witness as to what he received, but it does not appear that he struck out all his testimony. Witnesses may base their opinions of value on actual sales of which they have knowledge. Thompson v. Moiles, 46 Mich. 42 (8 N. W. 577). Plaintiff testified that, at the time of the trial, he was selling beans for 3 cents a pound. Defendant testified that there were 66 bushels of the beans; that one man offered him 50 cents a hundred pounds, and another 30 cents a bushel. This included the beans belonging to Jenereaux, as well as those which were raised by Watson. The court instructed the jury that the. testimony as to the value was somewhat vague and indefinite, but that from all the testimony as to the value, quantity, condition, etc., they must determine, to the best of their judgment, the value. We think the evidence was sufficient to submit to the jury. 3. Counsel for the defendant insist that the discharge of the defendant bank also operated to discharge the defendant O’Connor, under Wright v. Reinelt, 118 Mich. 638 (77 N. W. 246). This is an action of tort, and in justice’s court, and in circuit court upon appeal, judgment [296] could pass against either. That case has no application to actions of tort. Judgment affirmed. The other Justices concurred.