Aylmer v. Nw. Mut. Inv. Co.
| Decision Date | 19 October 1917 |
| Docket Number | No. 20295.,20295. |
| Citation | 138 Minn. 148,164 N.W. 659 |
| Parties | AYLMER v. NORTHWESTERN MUT. INV. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clay County; John A. Roeser, Judge.
Action by R. Aylmer against the Northwestern Mutual Investment Company. Verdicts for plaintiff. From an order denying its alternative motion for judgment or new trial, defendant appeals. Affirmed in part, and reversed in part.
See, also, 164 N. W. 661.
Syllabus by the Court
In an action by a chattel mortgagor against his mortgagee for the conversion of property acquired by him after the mortgage and placed with that mortgaged, and taken possession of by the mortgagee with that mortgaged, the evidence did not show that the mortgaged and unmortgaged property were so mingled and confused that it was error to refuse a peremptory instruction for the defendant under the doctrine that a mortgagor who mingles his other property with that mortgaged so that a confusion of goods results cannot claim that not mortgaged unless he separates it from the other and that the mortgagee is not a wrongdoer in taking all of it.
Nor did it require a peremptory instruction for the defendant because no damand was made nor was the evidence insufficient to sustain a finding of conversion.
A cause of action for damages for the loss of accounts alleged to have been caused by the defendant taking possession of the plaintiff's books of account is held unsustained.
A cause of action for loss upon certain unfinished contracts alleged to have been caused by the defendant taking possession of the plaintiff's property is held unsustained. M. Victor Oleson, of Fargo, N. D., C. G. Dosland, of Moorhead, and Lawrence & Murphy, of Fargo, N. D., for appellant.
Frank
H. Peterson, and Nels I. Johnson, both of Moorhead, for respondent.
This was an action to recover upon eight causes of action. All except the first, second, fourth, sixth and seventh were disposed of at the trial. Upon these separate verdicts were returned by the jury for the plaintiff. The defendant appeals from the order denying his alternative motion for judgment or a new trial. The briefs do not discuss the first and second causes of action and under the rule they will not be considered. The fourth, sixth and seventh are for consideration.
[1] 1. The fourth cause of action is for the conversion of personal property located in a garage at Moorhead. On March 20, 1914, the plaintiff gave the defendant a mortgage upon certain property then located in the garage. In November following the defendant took possession under the mortgage and the plaintiff's claim is that it took possession of property after acquired and not covered by the mortgage. This after-acquired property is that for the conversion of which suit is brought. There was a verdict for the plaintiff for $2,190.
After the execution of the chattel mortgage the plaintiff put other property in the garage and it was used in connection therewith. Of some of this after-acquired property the defendant took possession when it commenced its foreclosure and it purchased it at the sale. The situation indicates that the parties anticipated that the plaintiff would put additional property in the garage. He did not act wrongfully or negligently in mingling it with the other. The mortgagee invokes the doctrine that when a mortgagor mingles his other property with that mortgaged so that a confusion of goods results he cannot claim the property not covered by the mortgage unless he separates it from the other and that mortgagee is not a wrongdoer in taking it all. Gibson v. McIntire, 110 Iowa, 417, 81 N. W. 699;Fuller v. Paige, 26 Ill. 358, 79 Am. Dec. 379;Burns v. Campbell, 71 Ala. 271;Adams v. Wildes, 107 Mass. 123; Kreth v. Rogers, 101 N. C. 263, 7 S. E. 682; 1 Jones Chattel Mortgages, § 481 et seq.; 8 Cyc. 574; note, Ann. Cas. 1913E, 668; 5 R. C. L. 1048 et seq.; 4 Dec. Dig. Confusion of Goods, § 9; 10 Cent. Dig. Confusion of Goods, § 13. We need not inquire the extent and precise limits of this doctrine, nor the effect of the fact that the parties anticipated that property would be added, nor the fact that the plaintiff acted without fraud or negligence. The evidence does not show that there was such a confusion of property that that mortgaged and that after acquired could not be distinguished and that the defendant could not separate that covered by its mortgage; at least it does...
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