Alpena weekly argus. [volume] (Alpena, Mich.) 1871-1893, 1883-02-21


wise by Turnbull's positive misstate-
ments.
If Turnbull had simply suppressed
these facts by saying nothing about
them, then their knowledge of the
subject would have remained, and
they would not have been injured
Again, any mistake under which
they labored at the time of the trans
fer was induced and created by the
same misstatements. Up to that time
they knew the facts as they really ex-
listed and were not mistaken.
The case must turn and be controll-
ed by the representations made, and
not by what was concealed, for as to
all that they had full knowledge be-
fore and from other sources.
Third.-Again it is said that the
transfer of the notes was actually re-
scinded by Mr.. Turnbull and the At
torney-General at the time he visited
Alpena in May.
This interview occurred upon the
9th of that month, and it is uncon-
tradicted upon the testimony in the
case, that Mr.. Turnbull on the 9th
of the preceding month, had trans
ferred the notes to the defendants, Be-
wick, Comstock & Co., and although
that transfer may not have been made
withoutsuch knowledge on defendants
part as would affect them, with all
equities of the State, still | have no
doubt it was perfectly good transfer
as against Mr.. Turnbull; that it was
an actual transfer as against him. If
this be true, then no agreement or re-
cisiop made by him alone would bind
defendants Bewick & Co.
1t is true Turnbull said he would
get the notes from Comstock, but he
may have very likely supposed that
he could make some arrangement for
transfer, and at all events his admis-
sions or agreements made at that time
would not bind Comstock. Many
other legal objections to the validity
or enforcement of this alleged con-
tract of RECESSION suggest themselves
to me but / consider the foregoing
conclusive.
Fourth.-It is said that unless the
notes were surrendered to Minor, then
the transfer made was sale of the
notes by the State officers and beyond
their power and void to pass any title
for that reason.
Whatever force this proposition
might have in suit at law upon these
notes against Minor, think it has
none in this case in court of equity
in a controversy as to the equitable
right to the fund paid into court.
Minor owed McElroy for some logs.
He paid that debt by turning out his
two notes for $1,000, and McElroy as
well as Minor consented to the State
taking these notes as settlement of
an asserted claim. McElroy then
seeks the aid of this court and opens
that settlement and seeks to recover
back a part of the money or value
represented by those notes, and the
State allows him to do it upon pay
ment Of such part Of the States
claim as they agree upon. Then Nc
Elroy would be entitled to recover
the value of the logs which he had
originally sold to Minor, and for
which he has received nothing, and
Minor paid nothing. This would be
equitable all around. The State has
received its pay; Minor will pay the
purchase price of the logs to the
original vendor who will also receive
his just compensation. The whole
matter does not turn upon title to the
notes at all, nor is this suit upon those.
1t is not possible or profitable in this
suit in equity to attempt to separate
the mere notes from the fund which
they represent.
BY bringing the money into court,
Minor admits he is equitably bound
to his debt for the timber to someone,
and McElroy having satisfied the
claim of the State upon the same, is
now entitled to the fund which re-
presents the value of the timber.
Suppose Minor in the first instance
had given his notes in payment for
the logs, payable to McElroy or or
der, instead of Partridge, and Nc
Elroy had Endorsed them over in set
Element of the asserted claim of the
State, and then had compromised such
claim, and received back the notes.
In this proceeding / can see no diff
ference in the result between the two
cases.
Lastly.-It is said that from the
alteration of the indorse-
ment without explanation, the de-
PENDANTS, Bewick ct al, would be pre-
cluded from a recovery of the fund.
Again l think that in this proceeding !
a transfer of the title to the notes so
rs to maintain a suit at law unnn J