Loughlin v. Larson

• Decision Date: 16 May 1911
• Parties: LOUGHLIN v. LARSON (FULMER et al., Interveners).
• Court: South Dakota Supreme Court

131 N.W. 304

27 S.D. 376

LOUGHLIN v. LARSON (FULMER et al., Interveners).

Supreme Court of South Dakota

May 16, 1911

Appeal from Circuit Court, Moody County; Joseph W. Jones, Judge.

Action by John A. Loughlin against A. B. Larson, in which W. H Fulmer and others, copartners as Coleman Implement Company and C. E. Hendrickson and others, copartners as Hendrickson & Cone, intervene. From a judgment for plaintiff, interveners appeal. Affirmed.

Krause & Krause, for appellants.

Coleman & Blewitt, for respondent Loughlin.

Rice & Benson, for respondent Larson.

WHITING J.

This action was brought by plaintiff to recover from defendant a sum of money in the hands of the defendant, received by him upon the sale of certain personal property, upon which property plaintiff claimed to hold a chattel mortgage, and by virtue of which chattel mortgage he claimed to be entitled to the proceeds of such sale.

The interveners claimed to be entitled each to a certain sum from the proceeds of such sale, under and by virtue of certain orders upon defendant for the payment of same, which orders they claimed to have received from the owner of the property sold, and which orders they claimed had been accepted by the defendant. The defendant disclaimed any interest in the proceeds of such sale, and, under the provisions of the statute, he brought the money into court and deposited the same with the clerk of court, to be paid out in accordance with the final judgment in said action. The cause was tried to the court and a jury; there being submitted to the jury two special findings or verdicts, first, as to whether or not the owner of the property sold was indebted to the plaintiff at the time he gave the note and mortgage under which plaintiff claimed; and, second, whether or not the mortgage given to plaintiff was given for the purpose and with the intent of defrauding other creditors of the mortgagor. The jury found with the plaintiff on both of these matters, and no error is assigned thereon. At the close of the trial, the interveners asked for certain findings and conclusions, which were rejected, and the court made findings and conclusions proposed by the plaintiff, to which the interveners interposed certain exceptions. Judgment entered in favor of the plaintiff; a motion for new trial was denied; and the interveners have appealed to this court from such judgment and order denying a new trial.

The exceptions to the findings raised questions as to the sufficiency of the evidence to support the findings of the court. The following are among the facts found by the court September 17, 1909, one F. A. Loughlin was indebted to the plaintiff in the sum of $660, and, to secure such indebtedness, gave plaintiff a promissory note for said amount, due October 1st, after date, and gave a chattel mortgage upon certain property to secure the note, which mortgage was duly filed upon September 17, 1909; the note and mortgage were given in good faith, and without any intent to defraud or injure other creditors of F. A. Loughlin; the mortgage to plaintiff was second, and subject to a prior mortgage of the same property, securing a debt of $1,460 September 29, 1909, F. A. Loughlin held a public auction sale of said property, at which sale the defendant was the clerk and as such received the proceeds of the sale; defendant was engaged by F. A. Loughlin to act as such clerk several days prior to such sale; F. A. Loughlin was indebted to the firm of Hendrickson & Cone in the sum of $96.89, and to the Coleman Implement Company in the sum of $191.90; several days prior to the sale F. A. Loughlin gave the Coleman Implement Company a written order, whereby he promised to pay said company the amount of their indebtedness from the proceeds of the sale, which order defendant accepted verbally several days prior to the sale; one day prior to such sale said F. A. Loughlin orally promised Hendrickson & Cone that he would direct the defendant to pay them the amount of their claim from the proceeds of said sale; the first mortgage was due October 1, 1909, and F. A. Loughlin was unable to pay the same, and the public sale was held, with the consent of the mortgage, for the purpose of raising...