Field v. Doyan

• Decision Date: 01 December 1885
• Citation: 25 N.W. 653,64 Wis. 560
• Parties: FIELD v. DOYAN.
• Court: Wisconsin Supreme Court

64 Wis. 560

25 N.W. 653

FIELD

v.DOYAN.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Sauk county.

W. S. Field, for respondent, Elbridge Field.

G. Stevens, for appellant, T E. Doyan.

TAYLOR, J.

This action was brought by the respondent to recover the possession of two heifers two years old and three calves, of the alleged value of $80. The facts are as follows: Louis Townsend was the owner of the heifers and calves; both respondent and appellant claim under him. Townsend on the twenty-second day of September, 1883, mortgaged the heifers and calves to the appellant, together with other personal property mentioned in the mortgage, to secure the payment to the appellant of the sum of $352.40 according to the conditions of a promissory note of that date, payable on demand, with interest at 8 per cent. per annum. The mortgage was duly filed in the proper town clerk's office. On the fifteenth of February, 1884, Townsend, then still being in possession of the mortgaged property, sold the heifers and calves in question to the respondent for the sum of $55.50; also two pigs, $2; and one hog, $4,--making in all $61.50. Whether the pigs and hog were covered by the mortgage does not clearly appear. At all events the plaintiff does not claim them in this action, and it does not appear that the appellant claimed them under his mortgage. On the fifteenth of February, the day of the sale of the property by Townsend to the respondent, Townsend wrote to the appellant a letter, of which the following is a copy:

“WONEWOC, February 15, 1884.

Mr. T. E. Doyan: Please find inclosed $60 on my account. I have disposed of some of the property to raise the money, and I think I will be able to raise the rest before long. Hoping this will be satisfactory, I remain yours, with respect,

L. TOWNSEND.”

The appellant admits the receipt of this letter and the inclosed money. On receipt of this letter and money he wrote to Mr. Townsend to send him a description of the property sold, and on the twenty-ninth of February he received a reply giving a description of the property sold. The appellant indorsed the $60 on the note secured by the chattel mortgage. The letter sent by appellant, to which the letter of Townsend received on the twenty-ninth of February was a reply, was not produced in evidence and was lost. On the trial in the justice's court Mr. Townsend was a witness and undertook to state his recollection of its contents. After the trial in the justice's court, and before the trial on the appeal in the circuit court, Mr. Townsend died, and several witnesses were sworn on the last trial as to what the testimony of Mr. Townsend was in the justice's court as to the contents of the appellant's letter. This evidence tended strongly to show that in that letter the appellant stated that he wanted a description of the property sold so that he could release it from the mortgage. The evidence shows that the respondent had no knowledge in fact of the existence of the chattel mortgage when he bought and paid for the cattle in controversy. It also tends very strongly to show that when the appellant claimed the property under his chattel mortgage, notwithstanding he had received the purchase money, the respondent...