Durr v. Wildish

• Decision Date: 20 September 1898
• Citation: 76 N.W. 355,100 Wis. 411
• Parties: DURR v. WILDISH.
• Court: Wisconsin Supreme Court

100 Wis. 411

76 N.W. 355

DURR

v.WILDISH.

Supreme Court of Wisconsin.

Sept. 20, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Motions in the matter of the assignment for benefit of creditors by Adolph Landau to J. E. Wildish for the benefit of creditors,--one by Emil Durr, the other by the assignee. The motion of Durr was denied, and that of the assignee granted. Durr appeals. Affirmed.Hoyt, Ogden & Olwell, for appellant.

W. J. & J. H. Turner, for respondent.

CASSODAY, C. J.

It appears from the record that April 30, 1896, one Adolph Landau was a merchant having a stock of goods and fixtures and in trade in the store at the place mentioned, consisting of crockery, glassware, silverware, children's carriages, and other goods, together with the fixtures belonging to the same; that on that day he and his wife gave to the plaintiff a chattel mortgage on all of such stock of goods and fixtures to secure the payment of $2,500, evidenced by four several promissory notes; that it was agreed, in and by the mortgage, that the mortgagors should have the right to sell goods covered by the mortgage, and add to the stock by purchasing other goods; that it was therein specially agreed that the mortgage should and did cover such property as should be afterwards acquired, and that the mortgagors therein agreed to make statements under oath, and file the same with the city clerk, as provided by section 2316b, Rev. St. 1898; that such mortgage was filed May 4, 1896; that the mortgagor filed with the city clerk, at or about every 60 days from its date to October 28, 1897, a verified statement of his sales, the total valuation of the stock added from time to time, and the amount of sales; that December 8, 1897, a part of the mortgage debt being due, Mrs. Landau, being alone in the store, was induced to deliver the key of the store to the plaintiff's attorney; that the plaintiff thereby claimed to have taken possession and be in possession under an agreement with the mortgagors and the usual clause in the mortgage authorizing the same; that December 13, 1897, Landau, being indebted to other parties for merchandise and borrowed money to an amount exceeding $3,500, made a voluntary assignment for the benefit of his creditors to the defendant, Wildish; that Wildish qualified as assignee, and entered upon the discharge of his duties; that thereupon a controversy arose as to whether the mortgagee or the assignee had the right to the possession of the goods and fixtures; that each party, upon affidavits, obtained an...