Lorton v. Fowler
| Decision Date | 29 September 1885 |
| Citation | 24 N.W. 685,18 Neb. 224 |
| Parties | R. LORTON ET AL., PLAINTIFFS IN ERROR, v. JAMES M. FOWLER, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nemaha county. Tried below before BROADY, J.
REVERSED AND REMANDED.
John C Watson, for plaintiffs in error, cited: Lininger v Raymond, 12 Neb. 25. Nelson v. Garey, 15 Id 531. Bierbower v. Polk, 17 Id., 268.
Groff & Montgomery, for defendant in error, cited: Brunswick v. McClay, 7 Neb. 137. Gregory v. Whedon, 8 Neb. 377. Tallon v. Ellison, 3 Id., 63. Hedman v. Anderson, 6 Id., 392. Tootle v. Dunn, 6 Neb. 99. Temple v. Smith, 13 Neb. 513. Dorrington v. Minnick, 15 Neb. 403-404. Wake v. Griffin, 9 Neb. 47. Twyne's Case, 2 Coke, 80.
The firm of Brown & Prouty, general merchants, of Brock, Nemaha county, were indebted to Lorton & Co., wholesale merchants, of Nebraska City, in the sum of thirteen hundred dollars, which was evidenced by a promissory note for that sum, bearing date Nov. 25th, 1884, due one day after date, and drawing interest at 10 per cent per annum; and on the 28th day of November, 1884, for the purpose of securing this indebtedness, they executed and delivered to sad Lorton & Co. a chattel mortgage upon their entire stock of goods and merchandise, and the furniture and fixtures of their store. The mortgage was in the ordinary and usual form, except that in the clause authorizing the mortgagees upon default to take possession of the goods, they were, by interlineation, authorized to sell the same at private sale as well as at public auction. The mortgage was recorded on the 29th day of November, the day after its execution.
On the 12th day of December, 1884, W. V. Morse and Owen J. Lewis, to whom the said Brown & Prouty were also indebted in the sum of four hundred and eight dollars, sued a writ of attachment out of the county court of Nemaha county, and placed the same in the hands of J. M. Fowler, sheriff of said county, who by virtue thereof attached and seized the said goods.
On the 16th day of December, 1884, the said Lorton & Co. commenced this action for such taking, and replevied the said goods. The cause was tried to the court (a jury being waived by both parties), who found in favor of the defendant, and for a return of said property in case a return thereof could be had; if not, that the defendant recover of the plaintiffs the amount of his special property, the same found by the said court at the sum of four hundred and thirty-three dollars and ten cents, with costs, etc. The plaintiffs bring the cause to this court on error.
The statute, Sec. 11 of Chap. 32, Comp. Stats., provides as follows: "Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be...
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