Hill v. Merriman

• Decision Date: 08 November 1888
• Citation: 40 N.W. 399,72 Wis. 483
• Parties: HILL v. MERRIMAN ET AL.
• Court: Wisconsin Supreme Court

72 Wis. 483

40 N.W. 399

HILL

v.MERRIMAN ET AL.

Supreme Court of Wisconsin.

November 8, 1888.

Appeal from circuit court, Waushara county; CHARLES M. WEBB, Judge.

This action was brought to recover damages for 700 bushels of oats alleged to have been wrongfully taken from the possession of the plaintiff, December 1, 1884, by the defendants, and converted to their own use. The taking and conversion of 608 bushels of the oats is admitted and justified under three several chattel mortgages, each purporting to have been executed by the plaintiff to the defendant Merriman in consideration of the sum therein named to the plaintiff in hand paid, whereby the plaintiff granted, bargained, sold, assigned, transferred, and made over, to the said Merriman, oats described in the first and second mortgages as then growing upon 47 acres of the farm occupied by the plaintiff, and in his possession, and in the third mortgage as seven stacks of oats then standing on his farm, and in his possession, and each mortgage conditioned upon being void upon the plaintiff paying the sum therein named according to the condition of the note therein described; and each empowering Merriman, in case of the non-payment of the sum therein mentioned, or in case he at any time deemed himself insecure, to take possession of said oats, and sell the same at public or private sale on five days' notice, and apply the avails thereof in payment of such sum, and returning any residue to the plaintiff after paying all reasonable costs and charges. The first mortgage was for $100, and without date, but filed May 26, 1884. The second was for $55, given July 26, 1884, and filed October 18, 1884. The third was for $36.08, and given and filed October 20, 1884. It is conceded that the oats in question were raised by the plaintiff during the season of 1884 on the farm occupied by him, and that the same were by him threshed and stored on said farm, and that when the first mortgage was given 38 acres of the oats had not been sown, or at least not up so as to have that mortgage attach to the crop. At the close of the trial the jury returned a verdict in favor of the plaintiff for $187.42, and from the judgment entered thereon the defendants bring this appeal.R. L. D. Potter, for respondent.

Raymond & Haseltine, for appellants.

CASSODAY, J., ( after stating the facts as above.)

It is conceded that 38 acres of the oats had not been sown, or at least were not in existence, when the mortgage filed in May, 1884, was given; and hence that that mortgage was to that extent inoperative. As to whether the balance of the oats were in existence at that time, the evidence was in conflict, and the jury determined the question in favor of the plaintiff. All the mortgages were offered in evidence on the part of the defendants, and received by the court. The defendants also gave evidence to the effect that nothing had been paid on any of the mortgages; that Merriman was still the owner; and that he took the oats under the mortgages. Subsequently the plaintiff moved to strike out both of the mortgages filed...