Am. Laundry Mach. Co. v. Larson

• Decision Date: 04 December 1934
• Citation: 257 N.W. 608,217 Wis. 208
• Parties: AMERICAN LAUNDRY MACHINERY CO. v. LARSON ET AL.
• Court: Wisconsin Supreme Court

217 Wis. 208

257 N.W. 608

AMERICAN LAUNDRY MACHINERY CO.

v.LARSON ET AL.

Supreme Court of Wisconsin.

Dec. 4, 1934.

Appeal from a judgment of the County Court of Columbia County; A. F. Kellogg, County Judge.

Affirmed in part, reversed in part.

This is an action of replevin, commenced on May 31, 1933, by the American Laundry Machinery Company, plaintiff, against George W. Larson, Vinnette Wright, and Gertrude G. Larson, defendants, to recover certain laundry machinery sold to the defendants Larson upon a conditional sales contract, and claimed by the defendant Vinnette Wright as purchaser upon the foreclosure of a mortgage held by her upon the real estate to which this machinery was affixed. This property was owned by the defendants Larson. The action was tried to the court, findings of fact and conclusions of law made, and judgment entered on October 6, 1933, in favor of the defendant Vinnette Wright. Plaintiff appeals. The material facts will be stated in the opinion.Dougherty & Dougherty, of Wisconsin Dells, for appellant.

Rogers & Owens, of Portage, for respondents.

WICKHEM, Justice.

This appeal requires an application to the undisputed facts of sections 122.05, 122.06, 122.07, and 122.11, of the Uniform Conditional Sales Act. In order to appreciate the contentions and to arrive at a conclusion as to the rights of the parties, a chronological statement of the transactions involved will be necessary.

In 1924, Gertrude Larson acquired the real estate in question. Later, a concrete addition was built upon the premises for the purpose of conducting a laundry in partnership with her husband, George W. Larson. On September 18, 1925, the defendant Vinnette Wright made a loan of $9,000 and the Larsons executed a first mortgage covering the real estate in question. On January 29, 1926, plaintiff sold certain machinery to the Larsons, and the first conditional sales contract was executed by the plaintiff and filed with the city clerk. On May 4, 1926, other machinery was sold by plaintiff to the Larsons, and the second conditional sales contract executed and filed with the city clerk. These contracts, however, were not filed in the office of the register of deeds with a statement describing the real estate and reciting that the goods are to be affixed thereto, as required by section 122.07. On November 18, 1926, Vinnette Wright loaned an additional $6,000 and received a second mortgage upon the same real estate. On November 22, 1926, a chattel mortgage was executed by the Larsons to Vinnette Wright covering the personal property in the laundry, including the machinery involved in the two conditional sales contracts heretofore mentioned. On June 3, 1927, plaintiff sold another item of machinery to the Larsons, and the third conditional sales contract was executed by plaintiff and filed with the city clerk but not with the register of deeds, as required by section 122.07. On September 18, 1929, a second chattel mortgage was executed by the Larsons to Vinnette Wright covering the same property as the first. This instrument was filed with the city clerk September 21, 1929. On October 12, 1929, a third chattel mortgage was executed by the Larsons to Vinnette Wright covering the same property as the mortgage of September 18th, and this mortgage was duly filed. On June 2, 1933, the real estate was sold under foreclosure to Vinnette Wright. At the sale plaintiff gave notice of its claim to the machinery.

It is asserted by defendant Wright, and the evidence sustains this conclusion, that until the time of the foreclosure sale, or shortly prior thereto, she had no knowledge of the existence of the conditional sales contracts.

[1] It is respondent's first contention that this controversy is governed by section 122.07, which provides as follows: “* * * As against the owner of realty the reservation of the property in goods by a conditional seller shall be void when such goods are to be so affixed to the realty as to become part thereof but to be severable without material injury to the freehold, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are to be affixed thereto, shall be filed before they are affixed, in the office of the register of deeds of the county where such realty is located, and also entered in the tract index, when kept.”

It is contended that plaintiff, having failed to comply with the terms of the statute, lost its right to claim the goods as against the defendants Larson (the owners) and their grantees. There is no merit to this contention. As appears from the annotations to the Uniform Conditional Sales Act, this section of the statute deals with the situation where goods are affixed to the real estate by a contractor or subcontractor without the knowledge or consent of the owner, and has no application where the owner of the realty is the vendee under a conditional sales contract. People's Savings & Trust Co. v. Sheboygan Machine Co., 212 Wis. 449, 455, 249 N. W. 527, 250 N. W. 385, 88 A. L. R. 1306.

[2] There is no contention that the property here involved cannot be removed without material injury to the freehold, as that term is defined in the Uniform Conditional Sales Act. This being true, the same situation is here presented as was dealt with in People's Savings & Trust Co. v. Sheboygan Mach. Co., supra. It distinctly is not governed by Brunswick-Balke-Collender Co. v. Franzke-Schiffman Realty Co., 211 Wis. 659, 248 N. W. 178, because this case dealt with chattels so affixed as not to be removable without material injury to the freehold, or by David G. Janes Company v. Weed (Wis.) 253 N. W. 181, because this case did not involve a conditional sales contract. It was specifically held in the People's...