Daly v. Proetz
| Decision Date | 01 January 1873 |
| Citation | 20 Minn. 363 |
| Parties | JAMES H. DALY v. HENRY PROETZ. |
| Court | Minnesota Supreme Court |
E. Simonton and I. V. D. Heard, for appellant.
U. L. Lamprey, for respondent.
The plaintiff in this action seeks to recover damages from the defendant for the unlawful taking and conversion of certain personal property described in the complaint.
The facts in the case are substantially as follows: Kennedy & McChristal, saloon keepers, were the owners of the property, and on the fifteenth of February, 1872, being indebted to Henry Proetz, the defendant and appellant, executed and delivered to him two notes of that date, one for $72, payable on the first of March, 1872; the other for $70, payable on the first of April, 1872, to secure the payment of which they also at the same time executed and delivered to him a chattel mortgage upon the property described in the complaint.
By the terms of the mortgage Kennedy & McChristal were to remain in possession of the property; but in case of default in payment of the money secured thereby, or any part of it, or the interest thereon, at the time the same became payable, or if the property, or any part of it, was not properly taken care of, or became deteriorated or damaged, or if any attempt should be made to dispose of the same, or any part thereof, by the mortgagors, or any other person, the mortgagee was authorized to enter and remove and sell the said property and all equity of redemption of the mortgagors at public auction, after notice of not less than three days, or at private sale without any notice, and on such terms as the mortgagee saw proper, etc. This mortgage was filed in the proper office February 20, 1872.
On the fourth March, 1872, the said Kennedy & McChristal executed and delivered to James H. Daly, the plaintiff and respondent, a chattel mortgage to secure two notes of that date to the order of said Daly, — one made by Michael D. Kennedy, payable 90 days after date, for $69.25, with interest at 12 per cent. per annum; the other made by Thomas McChristal, payable 90 days after date, for $106.75, with interest at 12 per cent. per annum. The mortgage contained similar conditions and authority to the mortgagee as to the right to take possession and dispose of the property mortgaged. The mortgage was filed in the proper office March 6, 1872, at 9 o'clock A. M.
On the fifth March, 1872, the agent of defendant, Proetz, called on Kennedy & McChristal for payment of the first note secured by his mortgage, which had matured. They could not pay the note. After some negotiations between them, Proetz's agent on that day (Kennedy & McChristal having paid $15 or $20 on the note) took a new note for the balance of the indebtedness, and to secure the same took a new chattel mortgage upon the same property described in the first mortgage, and at the same time surrendered to the mortgagors the two notes secured by the first mortgage to Proetz. Neither Proetz nor his agent at this time had any actual knowledge of the mortgage to plaintiff.
It is claimed by the plaintiff that the transaction in which the defendant took the second note and mortgage, and surrendered to the mortgagors the original notes, was a payment of the first notes, and a cancellation and discharge of the first mortgage. The defendant insists that such was not the character or effect of the transaction.
The court charged the jury, at the request of the plaintiff, "that if the jury find from the evidence in the case that at the time the second mortgage and note from Kennedy & McChristal to the defendant were made, it was understood and agreed between them and Mr. Proetz, or his attorney, Mr. Simonton, acting for him, that such second mortgage and note were to be in payment and satisfaction of the mortgage and notes of February 15, 1872, and were accepted as such payment and satisfaction by said Proetz, and if the jury further find that the property described in the complaint was taken by said defendant and converted to his use, then their verdict must be for the plaintiff."
The question as to whether it was the agreement and intention, in fact, of the parties that the taking of the new note and mortgage by the defendant's attorney, on the fifth March, 1872, should operate as a payment and extinguishment of the original notes and mortgage, was distinctly submitted to the jury by this and other instructions of the court. The jury, having found a verdict for the plaintiff, must have determined this question adversely to the defendant.
The first point made by the appellant is that the verdict is not justified by the evidence. If we were permitted to determine this point by a reference to the testimony presented to us in the paper book, it may be that we should feel constrained to sustain the appellant's position; but unfortunately for the appellant, the paper book does not purport to contain all the evidence given upon the trial. Therefore, as the respondent urges, we must presume, in favor of the verdict, that there was upon the trial testimony not embodied in the return, sufficient to sustain the verdict.
The second point urged by the appellant is, that the respondent acquired no rights in the property under the mortgage made to him by Kennedy & McChristal.
Of the notes secured by the mortgage to Proetz, the defendant, the first was in terms payable on the first day of March, 1872....
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