Farwell v. Myers

Campbell, C. J.

This is the same controversy, in a different form, which is reported in Farwell v. Myers, 59 Mich. 179 .

In that case a claim was prosecuted under a general assignment for a balance insisted on as remaining due under a contract which was made by a purchaser with intent to defraud vendors, and to get goods without paying for them- *236 The debtor made a general assignment, and the creditors replevied so much of ■ the goods as they could trace to the hands of the assignee. They then filed their claim as vendors for the price of so much of the property as they had not replevied. The circuit court held that the claim could not be based on the contract, which had been rescinded for the fraud, and this Court divided equally upon that question, thus affirming the judgment. But all the members of this Court agreed that the fraudulent purchaser was responsible for the conversion of the goods if he had converted them, and. that a claim might lie on that basis.

Thereupon a new claim was filed, and the parties by counsel agreed upon the facts, from which it appeared that Myers had, before the assignment, sold the property beyond what was assigned, and the amount of the sales was agreed upon. Upon this claim and the stipulated facts, the circuit court gave judgment for the proceeds of the conversion. Error is brought, and the errors assigned all go to the correctness of the judgment upon the agreed facts.

The amount is not disputed, but it is insisted the claim was cut off by delay, and barred also by the former adjudication.

So far as delay is concerned, it is due entirely to a matter of legal form in describing the nature of the debt, and to the disallowance in the shape first presented. We think there is nothing in the statute to prevent its allowance, although the delay may have left less money in the assignee’s hands than will place the claimants on as good a footing as those who have already received dividends. Upon this we are not fully informed.

But it is impossible to hold the claim barred by the former adjudication. That simply held that no suit would lie on the contract as an original contract after it was rescinded for fraud. The present claim is not based on the contract, but on the conversion of the property of the claimants, *237 whereby they are entitled to require the payment of the value or proceeds, and they have now elected to proceed for the conversion of the goods for their money, which could be demanded either in trover or assumpsit. The claim was recognized in our former decision as a proper one, and we have no doubt it was properly allowed below.

There is some doubt whether the record is in such a shape as to leave all the questions open which were argued. But,as the objections do not appeal to any sound rule of law, we have not thought it worth while to dwell on their formality.

The judgment must be affirmed.

The other Justices concurred.