Halpin v. Stone

• Decision Date: 25 November 1890
• Parties: HALPIN v. STONE.
• Court: Wisconsin Supreme Court

78 Wis. 183

47 N.W. 177

HALPIN

v.STONE.

Supreme Court of Wisconsin.

Nov. 25, 1890.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.Cole & O'Keefe and Kate H. Pier, for appellant.

Sleight & Foster, for respondent.

COLE, C. J.

It is elementary law that, to support replevin, the plaintiff must, at the time of the caption, have had either the general property taken or a special property therein with the right of possession. 1 Chitty, Pl. 183, and cases referred to in note m. Had the plaintiff such an ownership in the ties in controversy when he commenced this suit as will support replevin? It appears he had given one Whitson a chattel mortgage on the ties to secure the payment of $130.72. No time was specified when the debt was to be paid, nor is there anything said in the mortgage as to who should have possession of the mortgaged property in the mean time. Some question was made on the argument as to the nature of this instrument, but it seems to us that it is clearly a chattel mortgage, and should be treated as such. The instrument recites that the property is sold to Whitson to secure the payment of $130.72. Either the mortgagor or mortgagee had the right to sell and transfer the ties to any party for the sum of 14 cents per tie for the tamarack ties, or more, and 20 cents per tie for the cedar ties, or more, and to give a complete bill of sale of the same, provided that out of the money realized from such sale the sum of $130.72 should be paid to Whitson by the purchaser to satisfy his debt, and the balance of the purchase money should be paid to the plaintiff. The expectation or intention of the parties doubtless was that the ties should be soon sold for the prices named, and the debt to Whitson be paid. It appears that in a day or two after the chattel mortgage was given Whitson did sell the ties to the defendant, and gave a bill of sale for the same, and received pay for his debt. The consideration stated in the bill of sale was less than the gross sum for which Whitson was authorized to sell, but parol evidence was admitted on the trial, against an objection on the part of the plaintiff, to prove that the defendant agreed to pay for the ties the same sum precisely as that stated in the chattel mortgage. If the parol evidence was admissible to show that this was the contract, the fact was conclusively established that the defendant did agree to pay 14 cents per tie for each of the tamarack ties, and 20 cents for each cedar tie. The evidence on that point is undisputed. Both Whitson and the defendant testified that this was the agreement, notwithstanding the consideration stated in the bill of sale. An error, as to the price to be paid for the tamarack ties, was committed in drawing the bill of sale, which is satisfactorily explained by the oral testimony. Now, the question is, was this evidence admissible in view of the consideration stated in the bill of sale? It is claimed that it is not, because it tended to contradict or vary the terms of the written instrument. It was admitted to explain the true consideration which was to be paid for the ties, and was admitted by the trial court on that ground, and for that precise purpose. But was the consideration in the bill of sale open to explanation by oral evidence? In Reynolds v. Vilas, 8 Wis. 471, this court adopted the rule that the consideration mentioned in a deed was only prima facie evidence, which might be controlled or explained by parol proof showing the real consideration. Frey v. Vanderhoof, 15 Wis. 398;Hahn v. Doolittle, 18 Wis. 196.

In many cases, evidence has been admitted to prove another and additional consideration besides the one expressed in the contract, and consistent with it. Hannan v. Oxley, 23 Wis. 519, and cases cited...