McCown v. Smith

• Decision Date: 10 January 1893
• Citation: 54 N.W. 31,84 Wis. 122
• Parties: MCCOWN ET AL. v. SMITH ET AL.
• Court: Wisconsin Supreme Court

84 Wis. 122

54 N.W. 31

MCCOWN ET AL.

v.SMITH ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from Winnebago county court, C. D. Cleveland, Judge.

Action by Frank C. McCown and others against F. W. Smith, defendant, and R. C. Russell, garnishee. Plaintiffs had judgment, and the garnishee appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record, in effect, that January 31, 1888, F. W. Smith was a merchant in Oshkosh, and the garnishee, R. C. Russell, was a banker at the same place. That on that day said Smith executed to said Russell a bond in the penal sum of $20,000, reciting, among other things, that said Smith was then justly indebted to divers persons, in all not exceeding $12,000; that said Russell did not in any manner thereby bind himself or agree to advance money sufficient to pay the indebtedness of said Smith; that said Russell was about to advance to said Smith moneys to enable him to pay his said indebtedness in full; that said Smith had a stock of goods of the value of about $40,000,--and conditioned that if said Smith should well and truly pay any moneys which said Russell should advance to him, or for his benefit, together with all costs, charges, and expenses in reference to the same, and well and truly indemnify and save said Russell harmless in the premises, then said obligation should be void; otherwise remain in full force and effect. That at the same time the said Smith executed to said Russell a chattel mortgage on his entire stock of goods, wares, and merchandise, furniture and fixtures, and property of every name and nature in his said store, (excepting and reserving book acounts, choses in action,) to secure said bond, which mortgage is in the usual form, and recited that said Russell was to take, and did thereby take, the actual and full possession of said property, and every part thereof, as a mortgagee in possession. That the net proceeds of all sales from and out of said property were to be deposited at the Union National Bank to the credit of said Russell, to be applied by him to the extinguishment and payment and satisfaction of any and all indebtedness due from Smith to him, and upon the payments of the moneys which he had advanced, and which he might thereafter advance, to said Smith, with costs, charges, and expenses, he would surrender the possession thereof to said Smith. That after the execution of said bond and mortgage, and before the commencement of this action, six several actions were commenced by six several parties, as creditors against said Smith, and in each of which said Russell was garnished, and, to settle up and pay such claims, he, as such garnishee, paid out $923.01. That March 12, 1888, the plaintiffs commenced this action to recover from said Smith $381.93, with interest, and on the same day garnished the said Russell. That said Russell, as such garnishee, answered, in effect, the facts stated, and also that prior to the commencement of this action he had advanced on said mortgage the sum of $9,901.21, and that he had received from the sale of said goods $2,800. That the plaintiffs thereupon took issue with said answer of the garnishee, and insisted that, notwithstanding said answer, said Russell was liable herein as garnishee. At the close of the trial of the issue so formed, and on October 12, 1889, the court found, as matters of fact, in effect, the several facts stated, and also that before said trial the entire stock of said goods and property covered by said mortgage had been converted into money, and the business closed out, and the proceeds thereof amounted to $36,000, and that the total charges of said Russell against said Smith, for all purposes, at the time of said trial, including the $3,000 for services and interest hereinafter mentioned, amounted to the same sum. That since March 12, 1888, said Russell had, in addition to the $923.01 paid by him on said prior garnishments, also paid off other claims and indebtedness to the amount of $5,264.23, upon which were discounts amounting to $1,331.23, leaving $3,933 actually advanced to said Smith under said mortgage, after the service of the garnishee papers in this action. That without any provision in said bond and mortgage, or either of them, and on October 8, 1888, said Smith executed to said Russell notes to the amount of $3,000 aforesaid, in consideration of his services as such mortgagee, and interest on moneys he had advanced to purchase new goods since this garnishment. That said Smith's interest in said stock of goods in the hands of said Russell, liable to garnishment, at the time...