Cappon v. O'Day

• Decision Date: 15 May 1917
• Parties: CAPPON v. O'DAY.
• Court: Wisconsin Supreme Court

165 Wis. 486

162 N.W. 655

CAPPON

v.O'DAY.

Supreme Court of Wisconsin.

May 15, 1917.

Appeal from Circuit Court, Wood County; Byron B. Park, Judge.

Suit by Jesse Cappon against Bat O'Day. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

On December 10, 1913, Anna Kern sold to Silber & Scheer, all of the parties at the time being residents of the city of Milwaukee, a farm in Wood county, together with certain personal property thereon, and to secure the payment of $2,000, which was part of the purchase price of the farm and personal property, she took back a chattel mortgage from the purchasers dated December 10, 1913, upon the personal property. The chattel mortgage recites that the mortgagors, Silber & Scheer, reside in the city of Milwaukee, and that part of the description of the personal property material here is as follows:

“Three (3) horses. * * * Said property is now on the north half of the northeast quarter (N. 1/2 of the N. E. 1/4), section thirty-one (31), township twenty-three (23) north of range five (5) east, Wood county, Wis. All of the said property being now in the possession of said first party in the county and state as aforesaid, and free from all incumbrance.”

It appears that at the time of the execution of the chattel mortgage Silber intended to remove to the farm in Wood county, and that he did so remove within two or three days after the mortgage was executed. Scheer and his family continued to reside in the city of Milwaukee until April 22, 1914, when they also moved upon the farm. On January 24, 1914, the chattel mortgage was filed with the town clerk of the town of Sigel, Wood county, the town in which the farm was situated. At the time the chattel mortgage was recorded, Silber was residing upon the farm and Scheer in the city of Milwaukee. On March 2, 1914, Anna Kern assigned the mortgage to the plaintiff, Jesse Cappon. August 20, 1914, Silber & Scheer sold for value to defendant two of the horses which they purchased from Anna Kern and which were attempted to be described in the chattel mortgage. After making the bargain for the horses but before paying for them, except a down payment of $10, defendant went to the office of the town clerk of the town of Sigel to inquire as to liens upon the property. The clerk was not at home, and his wife looked at the files but failed to find anything. On his way home the defendant met the clerk and renewed his inquiries and was advised by the clerk that he could not remember, and the clerk promised that he would examine the records and write him; and he did write defendant advising him of the existence of the mortgage. But without waiting to hear from the clerk the defendant paid the balance of the purchase price and took the horses. After receiving the town clerk's letter, the defendant went to the mortgagors and secured a guaranty to the effect that the horses were free and clear of liens and that the mortgagors would protect him. September 29, 1914, Silber & Scheer were arrested for selling property covered by chattel mortgage, contrary to the statute. The case was continued, and on October 14, 1914, it was settled in accordance with the statute and dismissed. It appears that by the settlement Silber & Scheer deeded to plaintiff their equity in the real estate on which they had paid $1,000, turned back all of the personal property remaining on the farm, and in addition paid $100 in cash. Silber & Scheer claim that this was to be a settlement of all claims. Plaintiff claims that it was a settlement of special damages accruing by reason of the sale of the chattel mortgaged property. In the property turned back was some personal property which Silber & Scheer had acquired after the purchase of the farm and not covered by the chattel mortgage. Shortly after the settlement, plaintiff commenced this and two other actions to recover property described in the chattel mortgage.

The court submitted the case to the jury, and the jury found: (1) That the description of the horses in the chattel mortgage from Silber & Scheer to Anna Kern was insufficient so as to render the chattel mortgage void as to the defendant; (2) that there was an agreement between Silber & Scheer and Anna Kern that Silber & Scheer could sell or exchange the horses and stock described in the chattel mortgage Exhibit A and replace the same with other horses and stock; and (3) that the value of the horses involved in this action was $325. The parties then made the usual motions. Upon motion of the plaintiff, the court changed the answers to questions 1 and 2 from, “Yes,” to “No,” and upon the verdict as so changed directed judgment for the plaintiff in the sum of $325, and further found that plaintiff was entitled to judgment in any event, notwithstanding the verdict, for such sum. Judgment was entered accordingly, and defendant appeals.W. E. Wheelan, of Grand Rapids, for appellant.

Goggins, Brezeau & Goggins, of Grand Rapids, for respondent.

ROSENBERRY, J. (after stating the facts as above).

It is claimed: (1) That the description of the property in the chattel mortgage is insufficient to make the mortgage a valid instrument; (2) that the court erred in holding incompetent the evidence of the agreement between the mortgagors and the mortgagee as to the right of the mortgagors to sell and replace the property described in the mortgage; and (3) in refusing to submit to the jury the question whether before this action was commenced plaintiff's claim was discharged and satisfied.

The question as to whether or not the chattel mortgage was filed as required by sections 2313 and 2314, Stats., so as to be valid as against third parties, was not raised in the court below. It appearing from the undisputed evidence, however, that the mortgagors resided in the city of Milwaukee at the time of the execution of the mortgage, and that only one of the parties resided in the town where the mortgage was recorded at the time it was recorded, this court upon its own motion required briefs to be filed on the following question:

“Was the filing of the chattel mortgage given by Silber & Scheer, mortgagors, dated December 10, 1913, in the town of Sigel, Wood county, Wis., a sufficient filing to make the same valid as against third parties, under sections 2313 and 2314, Stats.?”

Such supplementary briefs have been filed. No claim is made that the facts are other than as stated, nor...