Anderson v. Patterson

• Decision Date: 01 December 1885
• Citation: 64 Wis. 557,25 N.W. 541
• Parties: ANDERSON AND OTHERS v. PATTERSON.
• Court: Wisconsin Supreme Court

64 Wis. 557

25 N.W. 541

ANDERSON AND OTHERS

v.PATTERSON.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Monroe county.

The plaintiffs, who are partners, sued out a writ of attachment on a demand against the defendant, and caused his goods to be seized by virtue thereof. The affidavit annexed to the writ alleged, as grounds for the attachment, that the defendant had made a fraudulent disposition of his property, and that he fraudulently contracted the debt sued for. The defendant duly traversed such affidavit, and a trial of the issue resulted in a finding against the plaintiffs as to both of the alleged grounds, and an order dissolving the attachment was accordingly made. The plaintiffs appeal from such order. The testimony is sufficiently stated in the opinion.Proctor & Tollefson and C. W. Bunn, for appellants, Hans Anderson and others.

Dickinson & Graham, for respondent, David B. Patterson.

LYON, J.

From some time in the year 1881 until January, 1885, when the attachment herein was issued, the defendant was a retail dealer in general merchandise at Melvina, in Monroe county. In March, 1882, he borrowed $200 of one Steele, and one Hunt became surety for the payment thereof. The debt to Steele not having been paid, the defendant, in June, 1884, executed a chattel mortgage to Hunt on his whole stock in trade, for the purpose of indemnifying the mortgagee against the obligation he had assumed to Steele. The mortgage contains the usual stipulation authorizing the mortgagee to take possession of the mortgaged property whenever he deemed himselfinsecure, etc. The defendant (the mortgagor) continued in possession of the property, and carried on the business as before. He used portions of the goods in his family, and sold other portions thereof. He applied the proceeds of such sale to the support of his family and in the purchase of other goods, from time to time, which he intermingled with the mortgaged stock.

When the mortgage was executed there was no express understanding between the parties to it that the defendant might thus deal with the mortgaged property and the proceeds of the sales thereof. However, the mortgagee lived in the same place, was frequently in defendant's store, often saw him making sales of the mortgaged property, knew that he was thus replenishing his stock, and had all the means of knowing the manner in which he was disposing of the property. Yet he never interposed any objection thereto, but allowed the defendant to go on for seven months thus misappropriating the mortgaged property to his own use. In addition to these facts he testified that when he took the mortgage, his understanding was that the mortgagor should go on and sell the goods in the usual way, and might do as he pleased with the proceeds thereof.

The conclusive inference from these facts is that there was an implied agreement or understanding between the parties, when the mortgage was executed, that the mortgagor might deal with the property as he did. Were such not the understanding, it is incredible that the mortgagee would have stood quietly by, and witnessed the misappropriation of the property and the...