Beer v. Aultman-Taylor Company

• Court: Minnesota Supreme Court
• Writing for the Court: Berry, J.
• Citation: Beer v. Aultman-Taylor Company, 19 N.W. 388, 32 Minn. 90 (Minn. 1884)
• Decision Date: 15 May 1884
• Parties: Albert Beer v. Aultman-Taylor Company

19 N.W. 388

32 Minn. 90

Albert Beer v. Aultman-Taylor Company

Supreme Court of Minnesota

May 15, 1884

Plaintiff brought this action on February 9, 1882, in the district court for Scott county, to restrain the foreclosure by advertisement of a real-estate mortgage, and for the cancellation of the mortgage and the mortgage notes. The action was tried by Macdonald, J., who found the following facts:

On September 1, 1877, the plaintiff bargained with defendant (a corporation) for an "Aultman-Taylor separator," and an "Aultman-Taylor engine," at the agreed price of $ 1,505, and executed and delivered to the defendant three instruments in writing, dated on that day, for the purchase price, each of these being in the form of a promissory note to defendant's order, with the further provision that "the title to the Aultman-Taylor machine for which this note is given shall remain in the Aultman-Taylor Company until this note is fully paid." At the same time the plaintiff executed and delivered to defendant a chattel mortgage on the property, conditioned for the payment of $ 1,505, according to the terms of the before-mentioned notes the first of which, for $ 505, was payable by January 1 1878; the second, for $ 500, by January 1, 1879; and the third, for $ 500, by January 1, 1880. On September 1, 1878 the first note being unpaid, and the defendant being about to retake the property, the plaintiff, as further security for the notes, executed and delivered the realestate mortgage in question. On January 15, 1879, the plaintiff having paid but $ 180 on the notes, the engine and separator were taken from the plaintiff's possession, under a power in the chattel mortgage, and were thereafter sold at public auction by the sheriff of the county, for $ 900, to the defendant. On November 11, 1881, the defendant began proceedings to foreclose the real-estate mortgage by advertisement, under the power of sale contained therein, claiming to be due $ 1,122.20, and fixing February 11, 1882, as the day for sale.

The court also found that the taking of the property under the chattel mortgage destroyed the consideration of the notes and mortgage, and ordered judgment for the plaintiff, which was entered, and the defendant appealed.

Judgment reversed.

Culler & Ritchie, for appellant.

E. Southworth, for respondent, cited Third Nat. Bank v. Armstrong, 25 Minn. 530, and Minneapolis Harvester Works v. Hally, 27 Minn. 495.

...