kind and wherever situated, to have and to hold the same to said Bishop and Beekman and their successors for the equal pro rata benefit of the creditors of said company, with full power on the part of said trustees to sell and dispose of all said property and effects and convert the same into money for the purposes aforesaid." The defendant in error, being a Michigan creditor of the corporation, and having brought suit for the demand in the circuit court for the county of Alpena, proceeded in January, 1879, against Richardson & Co. as garnishees, and they in due time appeared and made disclosure. They admitted their indebtedness under the judgment but were unable to say whether it was payable to the corporation or to the assignees; and the latter at once intervened as claimants and denied the right of the garnishee plaintiff to intercept the fund. The controversy was brought to issue and tried before a jury, and the circuit judge directed a verdict against the assignees and they allege error. The whole evidence is returned, and the first question is whether, on their own showing, they made a case on which the jury could have found in their favor under a proper view of the law, because if they did not the result is correct. The whole foundation of their right is the proceeding by the corporation and its officers to transfer the judgment and other property for the benefit of creditors. The plaintiffs claimed that they were lawfully vested with the title, by means of the assignment, and it was incumbent on them to establish this claim. They were bound to show a good title, not merely as against the corporation or passive creditors, but as against the defendant in error who by proper adverse proceedings had put the question to the proof. There is no occasion to discuss the influence of foreign law or the obligations of comity. The paper made on the 28th of July was executed here and was in every respect a domestic transaction. As against the attachment of the judgment under the garnishee process it is void in conse quence of the power Hanford 11 Mich. 513. inserted to sell on credit: Sutton v. If the paper made the day previous in the state of Ohio can be said to have a distinct existence, it is of no greater force in this contention than the other. Granting all that can be claimed for it as an intended disposition of Michigan property, and it must be then admitted that it was made with express reference to this State, and with the positive intent. that its first taking effect on such property, including the judgment in question, should be in this State. The object was to convey the entire assets found here, and the executory operation of the instrument as a conveyance of such assets was meant to take place here. For the purpose of deciding on its validity in this controversy it must be viewed as though it had been made in this State. It remains to notice the third paper executed by the president of the corporation in Ohio nearly a year and a half later. This paper was made without any direct sanction of the corporation. The assignees contend that it was authorized by the resolution of the directors on the prior occasion. The explanation is that the president was then directed to provide and execute valid papers and, having failed, the duty and power remained. On this ground it is claimed that the last assignment was an act of the corporation and a lawful transfer. The facts exclude all implication of a purpose that the president should execute any general assignment for the benefit of creditors on his own authority, and we are not satisfied that he had power to do so. The case is certain that there was to be no transfer except as ordered by the directors. Can this last instrument be referred to the resolution made by the directors in July, 1877, for the purpose of making out title in the assignees against this creditor for the corporation? The Court think not. The power conveyed by the resolution was acted upon, and the assignments made under it were valid against the corporation and valid, also, as regards creditors and others not attempting avoidance. And for the year and some months elapsing between the transactions, and during which period the assignees exercised full control, there was no attempt to avoid or defeat the transfer. Moreover the assignees never restored anything or offered to renounce their trust or waive any right. They were not disturbed and they proceeded as though an avoidance of the transfer was impossible. Under these circumstances it is the opinion of the court that the power given by the directors was exhausted before the last paper was made and that as no new delegation of power took place, the assignees cannot make title to the judgment on the strength of that paper against the garnishee plaintiff. The result is that the assignees failed to make their claim good and hence the judgment must be affirmed with costs. The other Justices concurred. JOHN GAVIGAN AND ELLEN GAVIGAN V. EDWARD EVANS AND Established fact-Passage of title-Modification of contracts-Right of sale- Where the testimony on both sides agrees in establishing a right in a party to sell property in dispute, it should not be left to the jury as an open question. An agreement by parties for whom lumber is to be got out, to advance money and supplies to an amount stipulated, to the contractors, gives title to the supplies when furnished, and they belong to the contractors unless that contract is modified to the contrary. A contract is not affected by a subsequent agreement which does not refer to it, and the provisions of which are not so framed as to furnish means for connecting them. An understanding had subsequently with one of two joint contractors that certain property should not pass until paid for, without evidence of the price and terms of payment, and without any evidence of its connection with the lumber contract is not proven in such a manner that it can be applied as a modification of that contract and must be treated as a separate understanding. 45 597 90 125 Where authority is given to a person to sell property for the purpose of raising means to pay debts, the vendee cannot be required to see that the money is properly applied. Abstract presumptions as to title from possession become inapplicable when evidence is introduced of the actual title. Error to Alpena. Submitted Jan. 27. Decided April 13. Turnbull & McDonald for plaintiffs in error. CAMPBELL, J. Evans and Kilmaster, as survivors of themselves and Henry Kilmaster, deceased, who had been partners, brought replevin against the Gavigans, and others not now in the record, for two oxen. These oxen had been conveyed to Mrs. Gavigan by one Sebra Proper, who sold them under transfer from Albert Pinkham, who was owner of the assets of a firm of Pinkham & Flemming by whom these oxen and some other oxen and horses had been obtained from the firm of Evans, Kilmaster & Co. Pinkham & Flemming had contracted to cut and sell certain timber to that firm, who were to advance $2800 in supplies, and make various other payments. One important question on the trial was whether these oxen were furnished under that contract, or whether they had been delivered to Pinkham & Flemming to become their property when paid for. It appeared also in the case that Pinkham executed a chattel mortgage on the oxen, which Henry Kilmaster, one of the firm of Evans, Kilmaster & Co., obtained from the mortgagee and had assigned in the name of Henry D. Kilmaster & Co. This mortgage was not properly recorded, and was ruled out as a ground of replevin, but some other questions arose in regard to it. Other questions arose upon rulings. The contract for lumber becomes important, as under the rulings the jury must have found that the oxen were subject to some other arrangement. This contract was dated October 21, 1875, and bound Pinkham and Flemming to cut from land described and sell two million feet of white pine timber to be delivered in rafts on or about June 10, 1876, at seven dollars and twenty-five cents per thousand. The quality and method of cutting were provided for. If the land should not provide enough white pine, of the required sizes, the deficiency was to be made up of Norway and smaller white pine of the largest attainable size at six dollars. Some white ash and basswood was also allowed for at fixed rates. Payments were to be made as follows: $2800 in supplies at cost in Bay City; $1500 stumpage was to be paid to Mason, Luce & Co.; $4500 in cash from time to time as the work progressed, until delivery, and the balance in 3, 6 and 9 months from delivery. The bill of sale from Mason, Luce & Co. of the timber was to be transferred as collateral security. security was to be given by Evans, Kilmaster & Co. No The replevin suit was brought in August, 1876. The chattel mortgage was made March 29, 1876, and assigned May 30, 1876. The 'sale by Proper to Mrs. Gavigan was made August 8, 1876, a few days before suit. The testimony for plaintiffs below, and some of the other testimony was in the form of copies of testimony given previously in another case wherein Proper had been tried for the larceny of the oxen and acquitted. The testimony seems to have been uncontradicted that Henry Kilmaster consented to have the oxen sold, and the proceeds applied in paying the men employed by Pinkham. If the record is correct, it is difficult to see how this question could have been treated as an open one before the jury; and it is not disputed that the oxen were released by Pinkham to Proper for the purpose of paying such debts, some of which Proper assumed to represent, and for which he had seized the property. As much of the case seemed in the opinion of the court below to have turned upon the transaction between the firm of Pinkham & Flemming and that of Evans, Kilmaster & Co. at the time of the furnishing of the oxen, the nature of that transaction becomes material here, in one view of the Flemming testifies distinctly that they were furnished case. |