McCord, Brady & Company v. Krause

• Decision Date: 26 April 1893
• Docket Number: 5091
• Citation: 55 N.W. 215,36 Neb. 764
• Parties: MCCORD, BRADY & COMPANY v. PHILIP KRAUSE
• Court: Nebraska Supreme Court

55 N.W. 215

36 Neb. 764

MCCORD, BRADY & COMPANY v. PHILIP KRAUSE

No. 5091

Supreme Court of Nebraska

April 26, 1893

ERROR from the district court of Cass county. Tried below before CHAPMAN, J.

REVERSED AND REMANDED.

Jeffrey & Rich, for plaintiff in error.

Byron Clark, contra.

OPINION

RYAN, C.

On August 14, 1891, Philip Krause, a merchant at Plattsmouth Nebraska, made the first mortgage hereinafter referred to and on the 15th day of August, 1891, made the other chattel mortgages in the order given, upon the entire merchandise composing his stock of goods, to secure severally the parties and amounts following, to-wit: Bank of Cass County, $ 1,000; Meyer & Raapke, $ 330.73; Tootle, Hosea & Co., $ 677.82; D. M. Steele & Co., $ 311.37; McCord, Brady & Co., $ 331.67; Kasper Bros., $ 354.35. These mortgages practically covered all the possessions of defendant Krause, and each provided that it was "lawful" for the mortgagee to take immediate possession of said goods and chattels wherever found, the possession of these presents being his sufficient authority therefor, and to sell the same at public auction or private sale, or so much thereof as shall be sufficient to pay the amount due or to become due," etc. After reciting the statutory provision for advertising the sale, each mortgage provided for sale without notice at continuous private sale at option of the mortgagee. Each mortgagee, through W. H. Miller, as agent, upon the making and filing of said mortgages went into possession, and private sales of the stock began under the provisions aforesaid.

It is a disputed proposition whether or not the plaintiff in error McCord, Brady & Co. accepted the mortgage in favor of that firm. Certain it is, however, that on August 24, immediately following the making of said mortgage, the plaintiff in error repudiated the same by attaching the mortgaged property in this suit brought in the district court of Cass county. The petition and affidavit for an attachment were in due form for the indebtedness not yet due, as well as for a part already due, and there was on the same day made by the presiding judge of said district court the following order:

"On application of the plaintiff, and it appearing from the affidavit of the plaintiff that the claim is just and that there is cause for granting an attachment, an order of attachment in the sum of $ 396.56, and $ 50, probable costs of the action, is therefore allowed to issue in this case, upon the plaintiff giving an undertaking in the sum of $ 800, with approved security as provided by law.

"(Signed)

SAMUEL M. CHAPMAN,

"Judge of the District Court."

An undertaking was filed as required by this order, and duly approved, whereupon an order of attachment issued against the property of defendant Krause, and was at once levied on the mortgaged property by the sheriff of said county, in whose possession said property remained, at least until after the dissolution of the attachment.

W. H Miller, on the hearing and determination of the motion hereinafter referred to for the dissolution of the attachment, in his affidavit, stated that on August 15 he was by the mortgagees put in possession of the mortgaged property with instructions to remain in possession of said goods for all of said parties until their respective claims were paid out according to the priority just stated, and accordingly proceeded to sell the mortgaged property at retail without advertising; that at the time of the levy he had collected on the...