Kirchner v. New Home Sewing-Machine Co. ( 1891 )

Barnard, P. J.

This case should have gone to the jury. The defendant is a manufacturer of sewing-machines. The plaintiff sold machines for the defendant. The precise nature of the arrangement is not very clear, but whether the plaintiff was a purchaser of the machines, or was merely an agent to sell them, it seems clear that the price of the machines was not payable by plaintiff to defendant until after they were sold. Kirchner hired the store and had property of his own in it. The defendant arrested the plaintiff for misappropriation of moneys collected, and the plaintiff was put in jail. The plaintiff made a bill of sale of his property in the store, or of some of it, and was released. This bill of sale was given as security for any claim which the defendant might have against the plaintiff. The plaintiff after his release began suit against the defendant to recover $1,500, which he claimed to be due him. If he was right in his claim, then the plaintiff has not misappropriated the defendant’s money; for the claim he made was much larger than the amount which the defendant claimed to have been misappropriated. The plaintiff commenced proceedings to punish the defendant for a contempt of court, the particulars of which do not clearly appear. The defendant then forcibly took possession of the plaintiff’s store under the bill of sale, and of all the property in it, and kept it some three months. There were other legal proceedings taken in the mean while. On the 27th of February, 1888, the plaintiff applied to have his property restored. The defendant agreed to give the store and contents back upon receiving a release of the plaintiff’s claim for the $1,500 and from the action for false imprisonment pending; for there had been arrests made beside the arrest for misappropriation of money. The release drawn was a general release. There were circumstances surrounding the transaction which tended to show duress and oppression, and also that it was not intended to cover any right outside of certain specified claims. It did not cover a refusal to give back the property taken from the plaintiff, for that was the sole consideration of the papers, whatever was in fact intended to be released by it. The complaint alleges that this was not done, and that certain property, which was delivered back, was in an injured condition. The judgment should therefore be reversed, and a new trial granted, costs to abide event.