Cline v. Libby

• Decision Date: 01 January 1879
• Citation: 49 N.W. 832,46 Wis. 123
• Parties: CLINE v. LIBBY
• Court: Wisconsin Supreme Court

49 N.W. 832

46 Wis. 123

CLINE v. LIBBY

Supreme Court of Wisconsin

January 1, 1879

APPEAL from the Circuit Court for Waupaca County.

The complaint alleges that in 1877, plaintiff and one Charles R Libby were partners in the business of buying and selling household furniture in the city of New London; that on the 13th of August of that year plaintiff purchased his said co-partner's interest in the business, for $ 690, for which he gave his three promissory notes, one for $ 200, due on the 13th of August, 1878, one for $ 200, due on the 13th of August, 1879, and one for $ 290, due August 13th, 1880 with interest at ten per cent., and all secured by a chattel mortgage upon plaintiff's entire stock in trade, of the value of $ 1,380, and upon a half interest in a hearse, which interest was of the value of $ 375; that at the time of the making of said notes and mortgage it was expressly agreed between the parties thereto, that plaintiff was to continue said business of buying and selling furniture, etc., and should have the right to sell the mortgaged property in his usual retail trade, and that from time to time, as the old stock should be reduced by sales and new stock purchased, he should execute chattel mortgages upon such new stock to secure said notes; that plaintiff accordingly continued said business at said city, and from time to time gave to said Charles R. Libby additional mortgages upon said stock, which are now on file in the office of the city clerk; that on the 24th of June, 1878, said Libby sold and delivered said notes and assigned all said chattel mortgages, to one Klausch, as appears from the records of said city clerk; that on the 3d of July following, in pursuance of his aforesaid agreement with Charles R. Libby, and at the request of said Klausch plaintiff executed to the latter another mortgage upon the stock then recently purchased by him, as additional security for the payment of the said notes; that, on the 16th of August following, he paid Klausch the first note in full, principal and interest, and also paid the interest then due on the other two notes, leaving a balance of $ 490, then and still due, which was and is secured by mortgages of personal property of over $ 1,500 value; that, on the 17th of the same month of August, Klausch sold and transferred the two remaining notes and said mortgages to the defendant, Rowena F. Libby; that defendant purchased the same with full knowledge of the aforesaid agreement between plaintiff and Charles R. Libby; that on the 19th of August, 1878, defendant, by her agents and employees, sought to take possession of the stock and furniture in plaintiff's store, under said mortgages, and did take possession of said hearse, and has advertised the same for sale; and that upon the 20th of the same month she again attempted to take possession of the stock. It is further alleged that, by the terms of said mortgages, plaintiff was entitled to the possession of all the mortgaged property until default made; that no default has been made, and there is no sum due and payable upon said notes until August 13, 1879; and that on the 21st of August, 1878, plaintiff tendered to defendant a bond in the penal sum of $ 1,000, conditioned for the payment of the notes at maturity, executed by himself as principal, and by one Cline and one Bingham as sureties, together with a mortgage to secure said bond, executed by said Cline upon real estate in the city of New London of the value of $ 1,000; that Bingham is a resident of said city, owning property in this state to the amount of $ 5,000 in excess of his exemptions and liabilities; that Cline owns unincumbered real estate and personal property in this state of the value of $ 2,000; that with said bond and mortgage plaintiff tendered defendant one dollar to pay for recording the mortgage, and demanded of her a return of said hearse; and that she refused to accept the tender or return the property.

It is further alleged that said chattel mortgages, or some of them contain a clause authorizing the mortgagee or his assignee, at any time when he shall deem himself insecure, to take immediate possession of the mortgaged property and sell and dispose of the same as though the mortgage were due and payable; but it is alleged and charged that the defendant purchased said notes and mortgages for the purpose of injuring plaintiff and destroying his business; that defendant does not deem herself insecure, but, through the instigation of her agent Henry A. Libby, is seeking to distress and embarrass the plaintiff, and to possess herself of plaintiff's property by a forced sale at much less than its real value, and thus obtain payment of said notes before they are due, in order that her agent, who is engaged in the furniture trade in said city of New London, may thrive by the ruin of plaintiff's business; and that to permit her to do so would be against equity and good conscience, and would do plaintiff an irreparable injury, defendant being irresponsible as plaintiff is informed and believes. There are further averments to show that defendant is hindering plaint...