Randall v. Higbee

37 Mich. 40, 1877 Mich. LEXIS 192

Opinion

Per Curiam.

The plaintiffs had a mortgage on a stock of goods which had not been put on record. The defendant being a creditor of the mortgagor, took by arrangement with him or his wife, sufficient of the goods to satisfy his demand, sold a part of them and retained the remainder. Plaintiffs, claiming that defendant at the time of taking the goods, had knowledge of their mortgage, brought suit against him in assumpsit on the common counts.

This suit cannot be maintained. The goods did not belong to plaintiffs; they had only a lien upon them. If defendant, with knowledge of their lien, has wrongfully done any thing to injure plaintiffs’ security they might have an action on the case against him: but there is no ground for an action of assumpsit. To warrant such an action, they should have been in position to claim the goods as owners; but that, as already stated, was not their right. Farrington v. Bristol, 35 Mich., 28. They could not therefore claim that moneys received by defendant for the goods belonged to them’ as owners; their title to the moneys could not be superior to their right to that from which the moneys had been obtained.

Judgment affirmed.