Community Finance Service v. Wiseman

• Decision Date: 03 November 1941
• Docket Number: 17007.
• Citation: 4 So.2d 446
• Court: Court of Appeal of Louisiana — District of US
• Parties: COMMUNITY FINANCE SERVICE, INC., v. WISEMAN.

4 So.2d 446

COMMUNITY FINANCE SERVICE, INC., v. WISEMAN.

No. 17007.

Court of Appeal of Louisiana, Orleans.

November 3, 1941

Casey Babin & Casey, of New Orleans, for appellant.

Graham & Graham, of New Orleans, for appellee.

WESTERFIELD Judge.

The Community Finance Service, Inc., alleges that it is the holder and owner of a certain note signed by Lee Faucette and his wife Louise Crawford Faucette, and Eula Huffsutler, calling for the sum of $300, bearing interest at 3 1/2 per cent. per month from January 22, 1937, and secured by a chattel mortgage on certain household furniture, the whole subject to a credit of $15. It is alleged that the defendant, S Wiseman, purchased the mortgaged furniture from Faucette and subsequently sold it at auction to divers persons, thus placing it beyond the reach of plaintiff and making it impossible for it to seize the property in satisfaction of its mortgage. Judgment is sought against Wiseman in the sum of $285 "because of the unlawful conversion of the said property * * * and because of his failure to disclose to petitioner the whereabouts of the said property".

Wiseman admitted that he purchased the furniture from Faucette paying him $105 therefor on February 22, 1937, and that he sold same at public auction on February 25, 1937, three days later; and testified that prior to the sale, one J. J. Frigerio, a representative of the plaintiff, called at his place of business and stated that the furniture was subject to a mortgage in favor of the plaintiff company; that after discussing the matter it was agreed that the furniture should be sold and the proceeds, according to Wiseman's answer, and the profit, according to his testimony, divided equally between the loan company and Wiseman.

There was judgment below in favor of defendant dismissing plaintiff's suit as in case of non-suit and it has appealed.

The case has been argued and briefed as though presenting the interesting question of the liability of an innocent purchaser of personal property encumbered with a chattel mortgage, who resells it at public auction without inquiry concerning or knowledge acquired of the existence of the mortgage. There was also raised the question of whether the mortgage creditor was obliged to exhaust his remedy against the two co-makers of the note before proceeding against the purchaser. However tempting these fields of inquiry may be, no such issue is presented here, for the defendant admits that he was told of the existence of the mortgage on the property before he sold it, though he stoutly maintains that he had no knowledge prior to his purchase from Faucette and justifies his sale of the furniture upon the ground that it was done by agreement with Frigerio, a representative of the plaintiff company. Frigerio died during March, 1937, within a month after defendant purchased the property and long before the suit was instituted. There was, therefore,...