Opinion
Docket No. 148.
Submitted November 5, 1923.
Decided December 19, 1923.
Error to Newaygo; Barton (Joseph), J. Submitted November 5, 1923. (Docket No. 148.) Decided December 19, 1923.
Replevin by the Tropical Paint Oil Company against George W. Hall for the possession of an automobile. Judgment for defendant. Plaintiff brings error. Affirmed.
White Reber, for appellant.
William J. Branstrom, for appellee.
This is an action of replevin. An automobile was taken on the writ and delivered to plaintiff. The defendant prevailed, waived return of the car, and had judgment for $1,800. Plaintiff brings error.
Plaintiff is an Ohio corporation, engaged in the manufacture and sale of paint. Defendant was a salesman in its employ for several years. Plaintiff loaned or advanced to defendant $800, which sum was charged against him on its books. To secure the amount advanced, defendant made and delivered a property note, so-called, for the amount, covering his said car, giving plaintiff the right to take possession of the car if default be made in payment. Later, a dispute arose. Plaintiff claimed the note was unpaid, to which defendant did not assent. This suit followed. There were two defenses, that no demand had been made, and that the note had been fully paid. Special questions were preferred by plaintiff, two of which were submitted to the jury. The questions and the answers of the jury:
" First. Did the plaintiff make a demand upon the defendant for the surrender of the King automobile prior to the issuing of the writ of replevin in this case? No.
" Second. At the time this suit was started had the defendant paid the property note, plaintiff's Exhibit 1, in full? Yes."
The court properly submitted to the jury the question as to demand, it being on this record one of fact. Concededly, the note was for security, in the nature of a chattel mortgage, which is not an absolute sale, but a security. Plaintiff's right to take possession was optional. The defendant could not be in default for not delivering up what was not demanded. Until demand there would be no tortious or wrongful detention of the property, which is the basis of replevin. Demand, therefore, was here a necessary condition precedent. 1 Stevens Michigan Practice, p. 256; Cadwell v. Pray, 41 Mich. 307; Campbell v. Quackenbush, 33 Mich. 287.
Appellant contends that defendant had no right in replevin to claim or show set-off to reduce the amount due on the note, or to have a balance found in his favor, citing cases. True, but he might show that the note, on which plaintiff's case was planted, had been extinguished by payment. Kohl v. Lynn,
34 Mich. 360. The court correctly instructed the jury that, if demand was found to have been made, plaintiff was entitled to recover if anything remained unpaid on the note.
The verdict is said to be against the great weight of the evidence. The trial judge in denying the motion for a new trial held that it was not. On the question of demand the testimony was flatly conflicting, but there is sufficient evidence to sustain the verdict. As to whether the note was paid, there is much evidence, including many exhibits, which it will profit no one to review, but a preponderance, we think, in favor of defendant, appears. The trial judge was right in denying the motion.
The plaintiff was compelled before plea to make discovery of papers and books relating to the account between the parties. Circuit Court Rule No. 49. A similar case in facts is Cummer v. Kent Circuit Judge, 38 Mich. 351, where, on mandamus, a like order was vacated. The order ought not to be made unless it clearly appears that necessary information cannot be otherwise obtained. Perhaps the order here ought not to have been made. It might have been attacked on mandamus. But the question here is whether plaintiff was prejudiced thereby. It does not so appear. Hence we decline to hold the order and discovery to be reversible error.
No other question need be discussed. We find no reversible error.
Judgment affirmed.
WIEST, C.J., and FELLOWS, McDONALD, BIRD, SHARPE, MOORE, and STEERE, JJ., concurred.