still larger amount, of which the charge of the court deprived him, he brings the case here on writ of error. The defendants below also being dissatisfied with the judgment, but for a different reason, also ask a review on writ of error. Both parties agree only in asking a reversal of the judgment and for a new trial, and so seldom have we an opportunity to please both parties, that we must grant their joint request, reverse the judgment and order a new trial. Bewick, Comstock & Co. let to D. A. Kennedy the contract of putting in for them a quantity of logs. Kennedy employed Toohey to work for him, and also employed certain other parties and a part of the work was performed. Toohey seeks to recover upon the following instrument: "ALPENA, MICH., May 10, 1878. Mr D. A. Kennedy Wilson Township Mich. I am told that there are some fears expressed by some of your men, that they will not get their pay. You may say to them all, and show them, or any of them, that we here agree to pay every man in your employ, to the last dollar that be due him, that stays by you until you put in your logs. BEWICK, COMSTOCK & Co." may This instrument was brought to the knowledge of Toohey and he continued to work and gave evidence tending to prove, that he thereafter looked to the defendants for his pay. Under the charge of the court the plaintiff was not permitted to recover for the work done previous to May 10th and this is the main cause of his complaint. Defendants claim that the instrument sued on was either a mere power authorizing Kennedy to bind them, a guaranty, or an original undertaking between defendants and the men in Kennedy's employ on May 10th, and that under either view there were difficulties in the way of plaintiff's recovery under the pleadings, as he had declared upon the instrument as an original undertaking. A similar case was in this court once before and is reported in McDonald v. Bewick 43 Mich. 438. A number of authorities have been cited in the present case, in some of which instruments supposed to resemble the one here sued upon were construed. A layman of ordinary intelligence would have no trouble in construing the instrument sued upon. It contains a very plain proposition. Bewick, Comstock & Co. were interested in having the logs put in; the men at work in putting them in were afraid Kennedy would not pay them; this coming to the knowledge of the log owners, the instrument in question was written, to be shown to the men, and promising to pay them, or those who would stay until the logs were in. Who can doubt but that the men would, on seeing, or hearing read this instrument, and knowing the responsibility of the signers thereto, look upon it as a promise to pay them their wages-not for future work only, but "to the last dollar that may be due" them. when the work was finished, as no payment was contemplated until then. This must have been what the men would understand, and this is just what the parties making the instrument intended they should understand. Why then should the defendants not do as they agreed? What rule of law is violated in holding them bound by their obligation? Courts may refine upon such agreements, at the expense of justice, and render them a mere snare to mislead men. To say that these men can have no right of action because their names did not appear in the instrument would be but to render it nugatory as to them. This was not a promise made to some third persons for their benefit. It was made to the men directly, and Kennedy was made the agent of defendants, to bring this to the attention of the men, and upon this being done all who accepted its terms by remaining until the logs were put in, unless sooner discharged by defendants or their agent Kennedy, would have a right to recover. In this way and none other can full effect be given to the terms of the instrument, and to what must also have been the understanding of all the parties. We are also of opinion that Kennedy had power to increase the rate of wages to be paid the men after the 10th of May. He was in charge of the work and represented the defendants. The ruling of the court below was more favorable to defendants than we think was warranted, and not sufficiently so to the plaintiff. The judgment will therefore be reversed with costs and a new trial ordered. The other Justices concurred. DAVID RODMAN V. DANIEL NATHAN. Replevin-Rights of parties to a voluntary assignment-General and special ownership-Contradictory verdict. An assignee for the benefit of creditors is the general owner of the assigned goods until his trust is fully performed, and then the resulting trust restores to the assignor the general ownership in what is left. But during the trust, the assignor has no lien upon the goods, or special property in them. A debtor, who had made an assignment, afterward resumed control of the goods and the assignee brought replevin for them. Held that losses by the assignee's negligence could not be charged on him in this or in any suit at law. An accounting in respect to a trust can present questions of losses caused by the trustee's negligence only in a court of equity. A finding in replevin that plaintiff has the general property but that defendant did not unlawfully detain the goods is contradictory and cannot sustain a judgment in a case where it is impossible that a special property should co-exist with the general ownership. Error to Alpena. Submitted Jan. 27. Decided April 13. REPLEVIN. Plaintiff brings error. Reversed. An assign Turnbull & McDonald for plaintiff in error. ment for the benefit of creditors divests the assignor of his entire interest Burrell on Assignments 399; Briggs v. Palmer 20 Barb. 392; Pettit v. Johnson 15 Ark. 55; while the deed of trust is operative the trustee holds the whole title: Steevens v. Earles 25 Mich. 44. Kelley & Clayberg for defendant in error. COOLEY, J. In December, 1877, Nathan executed and delivered to Rodman as trustee a general assignment in trust for his creditors. The property assigned consisted of a stock of merchandise, and Rodman proceeded to dispose of it in the store where it was when the assignment was made, retaining Nathan as his clerk. In August, 1878, Rodman undertook to discharge Nathan from his service, whereupon the latter assumed the right to control, and declared the assignment at an end. As Nathan then had physical possession of the goods, Rodman replevied them, and they were appraised at $2824.13. On the trial of the replevin suit, the questions litigated appear to have been, whether Rodman as assignee had honestly and fully discharged his duty as trustee under the assignment, or whether he had been negligent and losses had been suffered by the trust fund in consequence. The inquiry thus assumed as wide a range as it would have done had the case been a suit in equity for an accounting. There was no showing that all the debts had been paid. The circuit judge in charging the jury instructed them in substance that the assignment made the assignee the general owner of the goods until the time had arrived when he ought to account, but that if they should find that the debts, legal charges and disbursements had been paid, and that there still remained in the assignee's hands moneys and property derived from the assignment, they should then find that the assignor had a special interest in the property to the amount so found, with interest from the time when the accounting should have taken place. This instruction seems to have been given on the supposition that the case was within Comp. L. 1871, § 6754, which provides that "when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter; and the finding of the jury, or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties." It was a mistake to suppose this statute had any application to the case. The assignor had no lien on the property assigned, and neither did he have any special property therein. The assignee was general owner until the trust had been fully performed. When the trust was discharged the assignor would become entitled to have any surplus restored to him, not because of any special property, but because the resulting trust then restored to him his former rights as general owner. But in a suit at law questions of negligence in the assignee and of consequent loss could not be gone into with a view to punish the assignee therefor by charging losses upon him an accounting in respect to a trust which can present such questions, can only be had in a court of equity. But the jury rendered a verdict which was not only not warranted by the charge but was inconsistent with itself. The verdict was that Rodman was general owner of the goods, but that Nathan had a special property therein to the amount of one thousand dollars. The court accepted this verdict, and gave judgment that Nathan recover the sum named. Of course if Rodman was general owner, he was such by virtue of the assignment, and because the trust under it was not yet discharged. Nathan under such circumstances could have only a wholly contingent and uncertain equitable right; a right to have a surplus returned to him if one remained after the debts and all expenses of the trust had been paid: he could have no present legal right whatever. A finding, therefore, that Rodman was general owner would be inconsistent with any right of Nathan to recover anything, and a finding that Nathan was entitled to a certain sum would be equally inconsistent with the supposed continuance of Rod 45 MICH.-39 |