Chickering-Chase Bros. Co. v. L. J. White & Co.

• Decision Date: 30 January 1906
• Citation: 106 N.W. 797,127 Wis. 83
• Court: Wisconsin Supreme Court
• Parties: CHICKERING-CHASE BROS. CO. v. L. J. WHITE & CO.

127 Wis. 83

106 N.W. 797

CHICKERING-CHASE BROS. CO.

v.L. J. WHITE & CO.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by the Chickering-Chase Bros. Company against L. J. White & Co. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

This is an action of replevin commenced August 13, 1904, by the plaintiff, a foreign corporation, to recover the possession of a piano detained by the defendants L. J. White and M. J. White. The plaintiff claimed title by virtue of a chattel mortgage upon the piano executed to it by the owner thereof, the defendant, Mrs. Chas. T. Greene, on February 23, 1901, which mortgage was filed in the office of the city clerk of the city of Marinette, March 10, 1901, and was claimed to have been renewed by an affidavit filed in the office of said clerk February 24, 1903. The defendants White were partners operating a boarding house in the city of Marinette, and claimed to retain the piano by virtue of a boarding house keeper's lien thereon. Mrs. Chas. T. Greene was made party defendant, but did not appear.

The action was tried by the court, and findings of fact made in substance as follows: “(1) That the plaintiff, at the time of the execution of the mortgage, was, and now is, a foreign corporation. (2) That the defendants White were, on the 9th day of April, 1903, and ever since have been, copartners engaged in keeping a hotel and boarding house in the city of Marinette. (3) That the defendant Mrs. Chas. T. Greene was at the time of the execution of the chattel mortgage, and ever since has been, a married woman living with her husband. (4) That at the time of the execution of the chattel mortgage Mrs. Greene was the owner of the piano in question. (5) That she executed said chattel mortgage to secure payment of the sum of $325 to the plaintiff, and that a copy of the mortgage was filed in the office of the city clerk of Marinette March 10, 1901. (6) That on the 24th day of February, 1903, there was filed in said city clerk's office, and annexed to such copy of said mortgage an affidavit which, after the venue, reads as follows: ‘Chas. A. Osgood, of and for the corporation of Chickering-Chase Bros. Co., being duly sworn, says that they are the original mortgagees named in a certain chattel mortgage bearing date the 25th day of February, 1901, executed by Mrs. Chas. T. Greene, of Marinette, to Chickering-Chase Bros. Co., and that said corporation has still an interest in said mortgage to the amount of $241.49, being part of the original amount secured thereby which is yet unpaid, and that they claim a lien upon the property named in said mortgage to that amount by virtue thereof. Chickering-Chase Bros. Co., Chas. A. Osgood.’ (7) That on March 4, 1902, the plaintiff filed in the office of the Secretary of State of the state of Wisconsin a duly authenticated copy of its articles of incorporation, and that a license was then issued to the plaintiff to do business in this state, and that no copy of said articles had been theretofore filed in said office. (8) That on April 9, 1903, the defendant Mrs. Greene became a boarder at the house of the defendants White, and remained so until July 2, 1903; that she returned as such boarder October 3, 1903, and remained until October 19, 1903; that she again returned as such boarder November 9, 1903, and remained until June 6, 1904. (9) That the defendant Mrs. Greene agreed that she would pay for her board, furnished by the defendants White, at the rate of $6 per week while she was such boarder until March 28, 1904, and thereafter and until June 6, 1904, at the rate of $7 per week, and that she would charge her separate estate therewith. (10) That on June 6, 1904, there became due to the defendants White from the said Mrs. Greene, on account of such board, $278.90, no part of which has been paid. (11) That on or about April 9, 1903, Mrs. Greene, as such boarder, brought to the boarding house of the defendants White the piano in controversy, and that the same remained in said house and in possession of Mrs. Greene until June 6, 1904, and that thereafter and up to the present time said piano has remained in the defendants' said boarding house, and in their possession. (12) That on or about August 13, 1904, the plaintiff demanded possession of said piano from the defendants White, which demand was refused. (13) That there is due from the defendant Mrs. Greene to the plaintiff, on account of the demand secured by said chattel mortgage, the sum of $267.88. (14) That the value of said piano is $200.”

As conclusions of law the court found: “(1) That the defendants White were and are creditors of the defendant Mrs. Greene in the sum of $278.90, for which her separate estate was and is chargeable. (2) That the affidavit of renewal is insufficient in law, and that the lien of the plaintiff's chattel mortgage ceased as against the defendants White before April 9, 1903. (3) That during the time in which said Mrs. Greene remained at the house of the defendants White the relation of boarder and boarding house keeper existed between her and the said defendants White. (4) That as against the said defendant Mrs. Greene the defendants White had continuously and now have as boarding house keepers a lien upon and the right to retain possession of said piano for the amount due them from the said Mrs. Greene, to wit, $278.90, and that as against the plaintiff the said lien was and is superior to any lien or title which the plaintiff had or has by virtue of said chattel mortgage. (5) That the defendants White, at the time of the demand aforesaid, were and still are the owners of a special interest or property in said piano to the amount of $278.90. (6) That subject to such special interest of the defendants White the plaintiff has a special interest in said piano to the amount of $267.88. (7) That by virtue of their special interest aforesaid the defendants White were at the time of said demand and still are entitled to the possession of the said piano. (8) That the defendants White are entitled to judgment of dismissal of the complaint, with costs.”

Plaintiff filed the following exceptions to the findings of fact: “First. That the plaintiff excepts to the findings of fact in that the court does not find therein that Chas. A. Osgood, affiant in the affidavit of renewal, mentioned in finding six, then was general manager of the plaintiff. Second. The plaintiff excepts to said findings of fact because the court did not find therein that Mr. and Mrs. Chas. T. Greene both went to board with the defendants L. J. White and M. J. White, under an agrement between said defendants and the said Mr. Greene. Third. The plaintiff excepts to the ninth finding of fact and to the whole thereof.” Judgment was entered upon the findings dismissing the complaint, and the plaintiff appeals.W. B. Quinlan (H. T. Scudder, of counsel), for appellant.

Hutchinson & Goldman, for respondents.

WINSLOW, J. (after stating the facts).

This is a contest for the possession of a piano between a chattel mortgagee upon the one side, and a firm claiming a subsequent boarding house keeper's lien upon the other side. The trial court held that the boarding house...