Am. Hardware Co. v. Moore

• Decision Date: 09 May 1922
• Citation: 177 Wis. 190,187 N.W. 996
• Parties: AMERICAN HARDWARE CO. v. MOORE ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 190

187 N.W. 996

AMERICAN HARDWARE CO.

v.MOORE ET AL.

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Circuit Court, Oconto County; William B. Quinlan, Judge.

Action by the American Hardware Company against I. A. Moore and another. Judgment for defendants, and plaintiff appeals. Affirmed.Classon & Whitcomb, of Oconto, for appellant.

John B. Chase, of Oconto, for respondents.

JONES, J.

The action is to foreclose a mortgage. The complaint alleged that defendants I. A. Moore and Mary Moore executed a promissory note in the sum of $1,200, with interest at 7 per cent., payable to plaintiff corporation; that to secure such indebtedness, they gave a mortgage upon their farm; that they failed to comply with the terms of the note, and that there was due and owing on the mortgage the sum of $696.70.

Defendants admitted the making of the note, but denied that there was any amount due or owing. By way of counterclaim, they alleged that the note in question was also secured by a chattel mortgage of even date, which was duly recorded; that on the 20th day of August, 1920, plaintiff by virtue of the chattel mortgage seized the property and sold the same to itself on the 28th day of August; that plaintiff failed and neglected to make and file in the office of the town clerk a report of the sale pursuant to section 2316c, Stats.; that the property was sold for one-third of its value; and that thereby defendants were damaged in the sum of $50, and were entitled to judgment dismissing the plaintiff's complaint.

The note in question was given in payment for the balance due on a tractor, plow, and disk, and both mortgages were given as security. Plaintiff's agents removed the property from the premises on August 20, 1920. On this same date, defendant I. A. Moore was given notice in writing that the property would be sold on August 28th, at public auction, by virtue of the terms of the chattel mortgage. The property was sold on August 28th and the proceeds, $477, less moving and storage charges of $8, were credited on the note. A report of the sale was filed with the town clerk on September 17th.

Conflicting testimony was offered as to the circumstances surrounding the removal of the property from the farm. Plaintiff's agents testified, in substance, that they called on defendant and stated that they wanted either the money or the machinery; that defendant said he did not have the money, and that they would have to take the machinery; that defendant showed them where it was located, and helped them start the tractor. Defendant testified that plaintiff's agents came to the farm, and handed him the paper containing the notice of the sale; that they said they had come for the machinery; that he made no objection; that he went with them and pointed out the machinery, and may have helped them start the tractor; that he opened a couple of gates for them; and that he did not recall what conversation took place before they served the paper.

The trial court found that the defendants did not voluntarily surrender possession of the property, and that the report of the sale was not filed in the office of the town clerk as provided by section 2316c, Stats. He held as conclusions of law that the real estate mortgage had been fully paid and satisfied; that plaintiff was bound to satisfy the mortgage of record; that the chattel mortgage should be canceled; and that defendants should be awarded $25 and costs, as provided by the statute.

By section 2316c it is provided that whenever any property covered by a chattel mortgage shall be taken and sold by virtue of such mortgage pursuant to the powers of sale contained therein, the owner of the mortgage or his agent conducting the sale shall, within 10 days after the sale, make and file an affidavit setting forth the date of the sale, a description of the...