King v. Wallace

• Decision Date: 07 June 1889
• Citation: 78 Iowa 221,42 N.W. 776
• Parties: KING v. WALLACE ET AL.
• Court: Iowa Supreme Court

78 Iowa 221

42 N.W. 776

KING

v.WALLACE ET AL.

Supreme Court of Iowa.

June 7, 1889.

Appeal from district court, Page county; H. E. DEEMER, Judge.

Action to recover possession of a certain stock of merchandise. Trial to a jury. Verdict and judgment for defendants. Plaintiff appeals, assigning as errors the admitting and refusing certain testimony on the trial, the giving of certain instructions, overruling plaintiff's motion for new trial, and in rendering judgment on the verdict. The following facts, which appear without controversy, or by decided preponderance of the evidence, are necessary to be stated to a correct under standing of the case: The merchandise in question was formerly owned by the defendants, Wallace Bros., and kept by them for retail in a store in the town of Coine, Page county, Iowa, where the stock remained until taken under the writ in this action. April 30, 1886, Wallace Bros. sold the merchandise to J. A. Frink, then and after a resident of Ida county, Iowa, taking from him a chattel mortgage on the goods to secure a part of the purchase price thereof. Thereafter, on June 5, 1886, J. A. Frink executed and delivered to the defendants another mortgage on said goods as a substitute for the first, and because of some defect therein, which latter mortgage the defendants filed for record in Page county, on June 8, 1886, and upon which they now claim the property in controversy. Upon completing the invoice the defendants turned over the goods in the store where they were, and had no possession thereof after that time until taken by the sheriff on their mortgage, as hereinafter stated. Upon defendants going out of possession, Frank Frink, brother of J. A., was placed in charge of the store, and, with the assistance of others, employed to aid him, continued to carry on business until about the 20th of February, 1887, when the goods were taken by plaintiff, as hereinafter stated. There is no question but that Frank Frink was in full charge of the business, buying and selling in the usual course of trade, making settlements with customers, receiving and paying out money, employing help, and in all respects transacting the business as an owner would, except the deposits in bank were made in the name of J. A. Frink, and that Frank signed J. A. Frink's name to checks. The correspondence was in J. A. Frink's name, and statements were transmitted to him of the business from time to time. There was no change in the possession of the goods or the manner of doing business from the time of the sale, April 30, 1886, up to the time that King took possession,--about the 20th of February, 1887. Frank Frink resided in Coine, Page county, during all that time. On October 1 and December 2, 1886, J. A. Frink, then and thereafter residing in Ida county, executed two mortgages to Baxter, Reed & Co. on said stock of merchandise, which mortgages were filed for record in Ida county. On January 24, 1887, J. A. Frink gave Baxter, Reed & Co. authority to sell the stock at any time or place, without notice, and on February 2d they sold the same to the plaintiff, King, in pursuance of which King took possession of the goods in the store in Coine about 20th of February, 1887. At the time of receiving the mortgages from J. A. Frink, Baxter, Reed & Co. had no actual notice of the mortgage to defendants. In a few days after King took possession of the goods under his purchase the sheriff of Page county, on behalf of the defendants, and by authority of their mortgage, took the goods from King, whereupon King brought this action. There is nothing in the testimony impeaching the validity of either mortgage, and hence the contention is as to which is entitled to priority, or, in other words, whether at the time of executing and delivering the mortgages, or either of them, J. A. Frink was in actual possession of the merchandise.C. W. Rollins, T. E. Clark, and Cummins & Wright, for appellant.

W. W. Morsman and W. P. Hepburn, for appellees.

GIVEN, C. J.

1. It will be seen by the foregoing statement that there is no controversy as to the validity of the mortgages under which each party claims, nor as to their priority of date. It appears beyond question that at the time each of said mortgages were executed and delivered by J. A. Frink he was then a resident of Ida county; that Frank Frink had the immediate custody and control of the mortgaged property, with authority to carry on business in the usual course of retail trade, to add to the stock by purchases, make sales therefrom, settle with and collect from customers, to pay debts, to bank the funds and check against the same in the name of J. A. Frink, and in short to do to all appearances as owners...