Joseph Schlitz Brewing Co. v. Childs
| Decision Date | 07 July 1896 |
| Docket Number | Nos. 10,020 - (215).,s. 10,020 - (215). |
| Citation | 65 Minn. 409 |
| Court | Minnesota Supreme Court |
| Parties | JOSEPH SCHLITZ BREWING COMPANY v. CLARENCE H. CHILDS, Assignee.<SMALL><SUP>3</SUP></SMALL> |
A. D. Smith and Rea, Hubachek & Healy, for appellant.
James D. Shearer, for respondent.
On March 30, 1895, one John M. Wark was engaged in the retail saloon business in the city of Minneapolis, and was then indebted to this plaintiff in the sum of $888.83 for money loaned on two separate occasions in the year 1894, and which was past due and unsecured. He had been a customer of plaintiff for several years, with a good reputation, and reliable in business matters. He held a license to sell liquor, granted by the city of Minneapolis, which would expire the next day, and had no money with which to purchase a new license. The plaintiff knew of an unexpired license which then had three months to run, and informed Wark of it, who requested plaintiff to loan him $300 with which to purchase the unexpired license, Wark then stating to plaintiff that if he could get the license he would, by the time it expired, be able to purchase a new license for a year, and continue his business, as it was increasing, and he expected to get some money from the West. Wark was owing at this time somewhere from $2,651 to $5,600, the exact amount not definitely appearing. His estate was worth $3,500. Only one creditor was pressing him for payment, and he was willing to give him time. Of this claim plaintiff knew, except he had no knowledge of the amount. Plaintiff never pressed Wark for payment, and told him to pay when convenient, which he did weekly, and plaintiff believed him to be solvent. Plaintiff asked Wark for his financial condition, and Wark told him that he owed about $2,000, and that his assets were about $4,000, which statement plaintiff testified he believed to be Wark's true financial condition.
At this time — March 30, 1895 — they went to the office of plaintiff's attorney to have a chattel mortgage executed for the past indebtedness and also to include the $300 which plaintiff was to loan Wark to purchase the unexpired license, but Wark, expecting his brother from Montana, concluded to wait until the next day, when he thought he could get the money from him without security. Not succeeding in this, Wark, on April 2, 1895, executed to the plaintiff a chattel mortgage for $1,188.83, which included the past indebtedness and the $300 then loaned by plaintiff to Wark, who immediately used it in purchasing the unexpired license, all of which was done to enable Wark to continue in his business.
On May 15, 1895, Wark made a general assignment by deed in writing of all his unexempt property for the benefit of his creditors under the insolvent laws of this state. This assignment was made by reason of certain actions commenced against him by several of his creditors, and this defendant is the assignee under such insolvency proceedings. This chattel mortgage covers the property in question for which the plaintiff brought this action in replevin, and upon trial without jury the court below found in favor of the defendant.
It is contended by the appellant that at the time of giving the mortgage plaintiff had not reasonable cause to believe that Wark was insolvent. But the trial court found otherwise upon this point, and we cannot say that the evidence is so manifestly and palpably against this finding as to disturb it. It must, therefore, be held that plaintiff received the chattel mortgage as a preference as to the $888.83, but as to the $300 the mortgage stands upon an entirely different ground. The mortgage for this sum was not given by Wark or taken by plaintiff as a preference, or to induce Wark to secure the past indebtedness. The evidence upon this point...
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