Bank of Kaukauna v. Joannes

• Decision Date: 11 January 1898
• Citation: 98 Wis. 321,73 N.W. 997
• Parties: BANK OF KAUKAUNA v. JOANNES ET AL.
• Court: Wisconsin Supreme Court

98 Wis. 321

73 N.W. 997

BANK OF KAUKAUNA

v.JOANNES ET AL.

Supreme Court of Wisconsin.

Jan. 11, 1898.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by the Bank of Kaukauna against Charles Joannes and others. From a judgment for plaintiff, defendants appeal. Reversed.

The plaintiff brought this action against the defendants for the alleged wrongful taking and conversion of a stock of goods, the stock in trade of Jerry Strong, and which had been mortgaged by him to the plaintiff, August 24, 1888, for $500, with interest until paid at 8 per cent. per annum, said stock being at the time in the possession of said Strong. It was averred that the mortgage was filed in the office of the city clerk of Kaukauna, where Strong resided, on the same day, and the plaintiff demanded judgment against the defendants in the sum $600, with interest, etc. It contained the usual power of seizure and sale, and stipulated that, “as long as the conditions of the mortgage were fulfilled, said Strong was to remain in peaceful possession of the property, and in consideration thereof was to keep the same in as good condition as it then was, at the cost and expense of the mortgagee.” The defendants justified the seizure and alleged conversion under a writ of attachment in favor of the defendants as co-partners under the name of Joannes Bros., for about $720, issued about the 5th of May, 1888, against said Jerry Strong, from the circuit court for Outagamie county, and it appeared from the said writ that the sheriff of said county levied upon and took into his custody and possession the property in question; that by virtue of an order entered in the action wherein the attachment was issued the sheriff sold portions of the property as perishable, and the remainder was sold on execution issued on the judgment recovered against said Strong. Evidence was given tending to show that said Strong upon and at all times from the date of said chattel mortgage to the time of levying said attachment conducted a general grocery business in Kaukauna, and merchandised, sold, and disposed of the stock in question covered by the said chattel mortgage, conducting said business in the ordinary and due course of business, and by the consent of the plaintiff and its agent, and disposed of the proceeds thereof as he saw fit in support of his family, and paying expenses of the business, and in the same manner as though no mortgage thereon had been executed. The mortgage was put in evidence, as well as the writ of attachment and proceedings thereunder, and also the judgment roll in the case of Joannes Bros. and others against Strong, showing a recovery in their favor against Strong of a judgment of $843.33, and $91.20 costs. The question litigated at the trial to which the testimony was principally directed was whether the chattel mortgage on the said stock was fraudulent and void as against the defendants and others of his creditors on the ground that the mortgagor carried on business in the store, and dealt with his stock, in the same manner, in all respects, after the mortgage was executed as before, and to the knowledge and with the consent of the plaintiff; that Strong did not account to the plaintiff for the proceeds of sales made from day to day, and it never asked or demanded that he should; that it knew that Strong had no means of paying the current expenses of the business and supporting his family other than from the stock, and knowingly permitted him to sell and dispose of the stock, and use the proceeds as he pleased in paying store and family expenses and debts other than the plaintiff's, pursuant to an implied or tacit understanding to that effect. The stock was sold under the execution and judgment. The trial was before the court without a jury, the court finding that the allegations of the complaint were true, and that the defendants wrongfully took possession of the goods and chattels described in the chattel mortgage of the value of $800; that it was entitled to recover of the defendants the sum of $500, with interest at 8 per cent. from February 24, 1888, amounting to $843.33, with costs, and judgment was given accordingly, from which the defendants appealed. The defendants asked the court to find in support of their contention substantially as stated, and that the plaintiff permitted Strong to remain in possession of the mortgaged property, and continue his business, after its execution, until the attachment was levied, in precisely the same manner as he had done before the execution of the mortgage, using the proceeds to replenish the stock from time to time, and disposing of the balance of such property as he pleased, pursuant to an understanding or tacit agreement between Strong and the plaintiff to that effect; and that the chattel mortgage was fraudulent and void as against Strong's creditors, including the defendants. These findings were refused. It appears from the evidence of Towsley, the plaintiff's cashier, that he made Strong the $500 loan February 24, 1888, and took the note and chattel mortgage, as agent for the plaintiff, May 5, 1888. Joannes Bros. and Weise & Hollman took the stock under an attachment, Sheriff Golden acting as officer in the matter in Strong's store. During the time he was in business, from July 1, 1887, to about December 1st, he...