Heidman-Benoist Saddlery Co. v. Schott

• Decision Date: 21 September 1899
• Parties: HEIDMAN-BENOIST SADDLERY CO. ET AL. v. SCHOTT ET AL.
• Court: Nebraska Supreme Court

59 Neb. 20

80 N.W. 47

HEIDMAN-BENOIST SADDLERY CO. ET AL.

v.SCHOTT ET AL.

Supreme Court of Nebraska.

Sept. 21, 1899.

Syllabus by the Court.

1. The fact that a mortgagor of chattels remains in possession thereof after making the mortgage is only presumptive evidence of fraud, which may be overcome by proper proof.

2. Whether the mortgage is fraudulent depends on the intention of the parties, and is not a question of law for the court, but a question of fact for the jury.

3. In an action of replevin, the plaintiff is entitled to a verdict and judgment for the property, or the value of the property, which was wrongfully withheld from him by the defendant when the suit was instituted.

4. In replevin, the plaintiff cannot recover damages for property which was not in defendant's possession or under his control at the beginning of the suit.

Error to district court, Holt county; Kinkaid, Judge.

Action by Joseph Schott against Heidman-Benoist Saddlery Company and others. Judgment for plaintiff, and certain defendants bring error. Affirmed on conditions.H. M. Uttley, for plaintiffs in error.

R. R. Dickson, for defendants in error.

SULLIVAN, J.

Joseph Schott brought this action against the plaintiffs in error to recover possession of a stock of merchandise. Some of the property described in the order of delivery was seized by the sheriff, and turned over to the plaintiff, but the greater portion of it could not be found. At the trial, the right of possession was claimed by both parties under chattel mortgages executed to them by the original owner, J. F. Pfunder, of the city of O'Neill. The plaintiff's mortgage was made and recorded December 13, 1893. Three days later the defendants obtained their mortgages. At the same time they took possession of Pfunder's store, and proceeded to sell the mortgaged stock in the usual course of the retail trade. After they had been in possession for eight months or thereabouts, this suit was commenced against them. The jury found the issues in favor of the plaintiff. They found the value of the property taken on the writ to be $135, and the value of the property sold and disposed of to be $280. The court denied a motion for a new trial, and rendered judgment confirming plaintiff's possessory title, and awarding him, as damages, the value of the property dissipated before the commencement of the suit. The defendants prosecute error.

They insist, first, that the court should have given the jury a peremptory direction to return a verdict in their favor, because the evidence conclusively shows that the mortgagor remained in possession of the stock and dealt with it as his own for the space of three days. It does not appear by the mortgage or otherwise that Pfunder was disposing of the property for his own benefit by the plaintiff's authority or with his consent. Whether the mortgage was fraudulent as to defendants, who were creditors of Pfunder, was a question of fact for the jury to determine from a consideration of all the facts and circumstances proven on the trial. That the mortgagor continued in possession of the store, and continued to dispose of the stock in the ordinary way, was a circumstance tending to prove fraud; but it was by no means conclusive. The validity of the mortgage depended on the intention of the parties, and that, according to the provisions of our statute, was not a question of law for the court. Section 20, c. 32, Comp. St. 1897; Turner v. Killian, 12 Neb. 580, 12 N. W. 101;Lepin v. Coon, 54 Neb. 664, 74 N. W. 1079.

It is next contended that the verdict and judgment are...