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Also filed an affidavit denying the authority of Dembitz to make the contract.

The cause was tried before Judge Gartner, by jury, in the Wayne circuit, and the circuit judge held the contract as declared upon inadmissible in evidence, and directed the verdict for the defendant, and plaintiffs bring error.

The circuit judge held that the authority of Dembitz to make the contract mentioned in the declaration was not sufficiently shown, and this ruling raises the only question needing consideration in the case. Was there testimony in the case fairly tending to prove this local manager's authority? I think there was such testimony, and that the contract should have been received in evidence when offered. There is no question but that Dembitz had all the authority of a local agent for the defendant at Detroit, and to make the contract with the plaintiffs he did in parol; but it is claimed that his authority did not extend to the right to put the same in writing. The contract is shown by the evidence to have been within the apparent scope of his authority as local agent. The testimony shows that Walsh, without question, not only had the authority but could authorize the local agent to make the contract, even if the latter had not such authority. There is testimony tending to show that the local agent submitted the matter to Mr. Walsh, and took his advice in the premises before he made the written contract; and that Walsh afterwards said, substantially, that the contract was all right, and that he was willing to carry it out, but did not want it in writing, so that plaintiffs could show by it they had such a writing; that he wanted them to give up the writing, because it was offensive to some other parties with whom defendant was doing business.

There is no question but that Mr. Dembitz was mana

ger of defendant at Detroit, and in that capacity he signed the name of the defendant to the contract, and there is testimony that under its provisions defendant received and retained one month's pay promised and paid by plaintiffs under the contract, and there is testimony tending to prove that Dembitz and his clerk were the men doing the business for the defendant at Detroit; that Dembitz made the contracts for carrying the Evening News, to hire and put men to work, and to pay them, to supply them with stock, to receive their cash, and to discharge them, and settle with the men in the employment of defendant. I think, under such a state of facts, the extent of the authority of Dembitz to bind the company in making the contract sued upon should have been submitted to the jury; also whether or not the defendant ratified the contract in question; and in refusing so to do the circuit judge erred.

The judgment should therefore be reversed, and a new trial granted.

The other Justices concurred.

FRANK W. CLARK AND ANN CLARK V. HIRAM N. LEE.

Fraudulent sale-Change of possession-Burden of proof-Charge to jury-Consideration illegal in part.

1. The burden of proof is upon the vendee to make it appear that the sale was made in good faith and without any intent to defraud the creditors of the vendor, where such sale is not followed by an actual and continued change of possession, and a refusal to so instruct the jury is error. Buhl Iron Works v Teuton, 67 Mich. 623.

78 221

91 334

2. In replevin by a vendee to recover a stock of goods seized at the suit of the vendor's creditors, the plaintiff relied upon his bill of sale as evidence of his title, the consideration for which he claimed was two chattel mortgages held by him on the property. The creditors claimed that one of the mortgages was given without any valuable consideration, and that the other was increased in amount, all with intent to defraud them, and with the knowledge of the vendee; and it is held a question for the jury, and, if found in favor of the creditors, the fraud tainted the whole transaction, and prevented a recovery by the plaintiff.

Error to Ionia. (Smith, J.) Argued October 15, 1889. Decided December 28, 1889.

Replevin. Defendant brings error. Reversed. The facts are stated in the opinion.

Mitchel & McGarry, for appellant, contended:

1. Where a general verdict has been rendered upon a charge embracing an unsound theory, and where it is uncertain whether the error did or did not effect the result, the judgment must be reversed; citing Warner v. Beebe, 47 Mich. 435; and this result must also follow where the charge is vague and misleading, so that it cannot be told that there was a fair trial; citing Loring v. Frue, 104 U. S. 223.

2. The statute upon which the defendant relies makes a conveyance made with intent to defraud creditors void; citing How. Stat. chap. 234; and was designed solely to protect the rights of the creditors, and is silent upon the rights of the parties to the transaction itself."

3. Entire honesty and good faith are necessary to render an instrument valid, and whenever it appears, as in the present case, that part of its object was to defraud creditors, the whole instrument is in judgment of law void; citing Russell v. Winne, 37 N. Y. 591; Goodhue v. Berrien, 2 Sand. Ch. 630; Shurtleff v. Willard, 19 Pick. 202; Chase v. Walker, 26 Me. 555; Barnet v. Fergus, 51 Ill. 352; Allen v. Brown, 43 Ga. 305.

4. If a part of a consideration for a transfer is merely a nominal or colorable consideration, contrived to hinder, delay, or defraud creditors, the whole transfer is void; citing Floyd v. Goodwin, 8 Yerg. 484; Burke v. Murphy, 27 Miss, 167; McKenty v. Gladwin, 10 Cal. 222; Mead v. Combs, 4 C. E. Green, 112; Albee v. Webster, 16 N. H. 362; and if any part of an assign

ment be contrary to the statute for the protection of creditors against fraudulent transfers, the whole is void; citing Goodrich v. Downs, 6 Hill, 438; and illegality of consideration is a complete defense to the entire contract, though the consideration be in part valid; citing Snyder v. Willey, 33 Mich. 484.

5. A grantee who voluntarily becomes a party to a deed which is fraudulent in part forfeits his right to claim benefit from another part which would have been good; citing Kirby v. Ingersoll, Har. Ch. 172,

Davis & Nichols, for plaintiffs, contended

1. No complaint can be successfully maintained that the language used by the circuit judge (see opinion, p. 230) is not law, unless the facts, as found by the jury or conceded by the parties, show without question that the law as given cannot be applied to the facts of this particular case; citing Pogodzinski v. Kruger, 44 Mich. 79; Campau v. Lafferty, 50 Id. 114; Dayton v. Monroe, 47 Id. 193; Brown v. Dean, 52 Id. 267.

2. The language used being correct as an abstract proposition, it is essential to turn to the facts as established by the verdict, to ascertain if the court was in error in giving the instruction complained of, and if he should have instructed the jury that the burden of proof was on the plaintiffs, and that, by virtue of the statute, a presumption of fraud was raised, which they were obliged to overcome and explain away. The court gave the defendant's first and second requests in full, bearing upon this question, thus fairly placing before the jury the object and purpose of the statute. He then proceeded in the language of this Court to explain what change of possession was necessary; citing Doyle v. Stevens, 4 Mich. 93; Sheldon v. Warner, 26 Id. 403; Cooper v. Brock, 41 Id. 491; Webster v. Bailey, 40 Id. 641; Carpenter v. Graham, 42 Id. 191; and the question as to whether there was the change of possession contemplated was then very properly left to the jury, who found in the affirmative, and, thereupon, the charge complained of was correct, and applicable to this case.

3. The instructions given to the effect that the plaintiffs could recover if there was a bona fide debt, and a scheme or conspiracy did not exist, and the goods received did not exceed such debt, and generally upon this phase of the case,-were a fair, full, and complete exposition of the law upon this branch of the case; citing Andrews v. Fillmore, 46 Mich. 315; Bank v. Chapelle, 40 Id. 447; People v. Bristol, 35 Id. 28; Adams v. Niemann, 46 Id. 135; Nichols v. Bancroft, 74 Id. 191.

LONG, J. The defendant is the sheriff of Ionia county, and held the stock of goods in controversy in this cause under several writs of attachments and executions on judgments rendered in the circuit court for said county in favor of Edson, Moore & Co., W. D. Robinson & Co., and Olney, Shields & Co. against one Clarence E. Monroe. The plaintiffs, claiming to be the owners of the stock, brought replevin against the sheriff, and took the same into their possession under the writ, and on the trial of the cause had judgment.

On the trial of the cause, Frank W. Clark, one of the plaintiffs, was called as a witness for the plaintiffs, and testified that Ann Clark was his wife, and that the plaintiffs were doing business at Odessa, Ionia county, in the firm name of Frank W. Clark & Co.; that they were in possession of the stock of goods on November 9, 1886, and had been since October 19, previous; and that on November 9, 1886, the goods in question were taken from the possession of the plaintiffs by the sheriff, under such attachments and executions; that plaintiffs came into possession of the goods by bill of sale from Clarence E. Monroe, who had been in possession of them for some time previous. It was admitted that demand was made before suit was commenced, and that the damage for detention was six dollars. Plaintiffs here rested.

It was claimed on the part of defendant, and testimony was given tending to show the fact, that on April 29, 1886, Clarence E. Monroe, a young man, 23 years of age, and one Jotham Rickertson, a former clerk of Frank W. Clark, one of the plaintiffs in this case, formed a copartnership under the firm name of Monroe & Rickertson, and purchased from Clark, Russell & Co., doing business at Bonanza, Ionia county, composed of Frank W. and Ann Clark, plaintiffs herein, and James W. Russell,

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