Franzke v. Hitchon
| Decision Date | 24 November 1899 |
| Citation | 80 N.W. 931,105 Wis. 11 |
| Parties | FRANZKE ET AL. v. HITCHON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Marinette county; Samuel D. Hastings, Jr., Judge.
Action by August Franzke and another against Robert Hitchon. Judgment for defendant. Plaintiffs appeal. Affirmed.
On October 1, 1896, the firm of Gissenaas & Graetz gave to the plaintiffs jointly their partnership note for $2,000, and secured it by a chattel mortgage on their stock in trade. On November 30th a new note and mortgage for the same amount were given, covering the stock, together with the store fixtures and furniture, there being testimony that this latter mortgage was given partly to avoid the statutory requirement for the filing of statements every 60 days, and also as a substitute for the former to cover the furniture and fixtures which had been omitted therefrom. On January 2d the defendant, as sheriff, levied upon the mortgaged property upon executions against said firm, and the plaintiffs brought this action to recover for conversion. It was testified by the plaintiffs that at the time of giving both of said mortgages it was understood that the mortgagors should go on selling the property in the ordinary course of business, using the proceeds to keep the stock up and to pay off creditors, and applying the balance to the mortgage; and that it was also understood and agreed that they should have the right to take for their own use, from said stock of merchandise, such as they needed in their families, and such as they needed for certain logging operations, which they were carrying on in a small way. The plaintiffs subsequently modified their testimony as to this agreement by explaining that by the word “creditors” they did not intend those who were creditors at the time of the giving of the mortgage, but such as should become creditors by the sale of new stock to supply that which was sold from time to time; and that it was also understood that the mortgagors were to keep an account of all goods which were taken by them for family use, or for their lumber camp, and should pay therefor when they could, it being expected that the following spring, when their logs were disposed of, they would be so able. This understanding was acted upon from the time of the making of the first mortgage continuously up to the seizure by the sheriff, the mortgagors using such goods as they needed for their families or for their logging camp, and buying goods from time...
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