Molle v. Kewaskum Mut. Fire Ins. Co.

• Decision Date: 28 January 1908
• Citation: 114 N.W. 798,134 Wis. 404
• Parties: MOLLE v. KEWASKUM MUT. FIRE INS. CO.
• Court: Wisconsin Supreme Court

134 Wis. 404

114 N.W. 798

MOLLE

v.KEWASKUM MUT. FIRE INS. CO.

Supreme Court of Wisconsin.

Jan. 28, 1908.

Appeal from Circuit Court, Door County; S. D. Hastings, Judge.

Action by John E. Molle against the Kewaskum Mutual Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Plaintiff, a married man, his wife residing with him, carried on a small jewelry, bicycle, and gun store at Sturgeon Bay, Wis., and also a repair shop for such articles containing the tools of his trade. On July 13, 1905, he took out a policy of insurance for $250 on the personal property in said building, described as a stock of bicycles, tools for the same, workbench and all hand tools pertaining to bicycles and gun repairs, and included additional insurance, by an amendment, on typewriter and typewriter repairs. It was a standard Wisconsin policy, and contained a clause providing that the entire policy should be void if the property be or become incumbered by a chattel mortgage. After fire and proofs of loss, it appeared that on July 5th, eight days before the date of the policy, plaintiff and his wife executed a chattel mortgage, without witnesses, on his stock in trade and fixtures according to a schedule specifying them by items, which mortgage covered all of said stock and fixtures, including the jewelry. This was set up as a defense. The court held that, as said chattel mortgage covered exempt property and was not witnessed, it was void as to the exempt property, and also void as to the nonexempt property, because the latter was not ascertained at the time of its execution and delivery, and therefore the mortgage failed to convey any specific property. He accordingly directed a verdict and rendered judgment for the plaintiff for the amount of the insurance, from which judgment the defendant appeals.Humphrey Pierce, for appellant.

Richmond, Jackman & Swansen, for respondent.

DODGE, J. (after stating the facts as above).

The decision of this case by the circuit court is sought to be supported by citation of Fowler v. Hunt, 48 Wis. 345, 4 N. W. 481, where was presented a chattel mortgage describing “the entire stock in trade and fixtures of the said * * * consisting of clocks, watches, chains, show cases, jewelry and all goods included in his stock, tools and material, excepting one safe, one regulator, one astronomical clock, two musical clocks, and stock in trade to the amount of $200.” It was ruled that this description was tantamount merely to a conveyance of all the generally described property other than the excepted articles, and, as the $200 worth of stock in trade was uncertain and might cover any specific article of the mortgage or stock, it could not be ascertained that any such article was intended to be conveyed. We think the present mortgage is clearly distinguishable. In Fowler v. Hunt it was the failure of the mortgage to evidence an intent to convey any of the several items making up the stock in trade that rendered the mortgage ineffectual. Here there is no possible doubt of the intent of the mortgagor to convey every article named in the schedule attached to his mortgage, a...