Nichols & Shepard Co. v. Minn. Threshing Manuf'g Co.

• Decision Date: 21 December 1897
• Citation: 70 Minn. 528,73 N.W. 415
• Court: Minnesota Supreme Court
• Parties: NICHOLS & SHEPARD CO. v MINNESOTA THRESHING MANUF'G CO.

70 Minn. 528

73 N.W. 415

NICHOLS & SHEPARD CO.vMINNESOTA THRESHING MANUF'G CO.

Supreme Court of Minnesota.

Dec. 21, 1897.

(Syllabus by the Court.)

1. In an action of trover the complaint alleged generally that defendant converted the property to his own use, without stating in what way he converted it. Held, under a general denial in the answer the defendant may prove any state of facts which show that he has not converted it.

2. In an action by the mortgagee for conversion of the mortgaged property, proof that the defendant purchased the property for a valuable consideration, from the mortgagor, does not alone show conversion. But held, a sale of a chattel implies a warranty against incumbrances unless the contract of sale expressly provides to the contrary; and a finding that the defendant sold the property implies that he did not sell it subject to the mortgage, but that he exercised dominion over it in exclusion and defiance of the plaintiff's right, and this constitutes conversion.

3. According to the law of the state where the mortgage was executed and the property was at the time, a chattel mortgage does not pass the title to the mortgagee, and is but a mere lien; but condition was broken, and the mortgagee was entitled to immediate possession. Held, he can maintain an action of trover for the conversion of the property.

Appeal from district court, Hennepin county; C. B. Elliott, Judge.

Action of trover by Nichols & Shepard Company against Minnesota Threshing Manufacturing Company. Finding for defendant. From an order denying a new trial, plaintiff appeals. Reversed.

Armstrong Taylor, for appellant.

Brown & Buffington, for respondent.

CANTY, J.

The complaint alleges, in substance, that in June, 1892, one Kenitzer was the owner of a threshing machine and engine, which was then in South Dakota, where Kenitzer then resided; that on that day he mortgaged the same to the plaintiff corporation to secure the payment of $325 then due by him to it, and that the mortgage was then duly recorded in the proper office in the county of his residence; that thereafter, in 1893, while said mortgage was in full force and effect, and after the conditions thereof were broken, and when plaintiff was entitled to the immediate possession of the mortgaged property, the defendant corporation obtained possession of all of the property, and “wrongfully converted the same to its own use.” The answer is a general denial. On the trial before the court without a jury, the court found for defendant, and from an order denying a new trial plaintiff appeals.

1. It is assigned as error that the court permitted defendant to prove a certain statute of South Dakota, against the objection that it was not pleaded in the answer, which statute, as the courts of that state have construed it, provides that a chattel mortgage shall not pass the title to the property covered by it until after foreclosure, but that it shall confer on the mortgagee merely a lien as security for the payment of the indebtedness. We are of the opinion that the evidence was competent, if material. The plaintiff did not allege the manner in which defendant converted the property, and under its complaint might have proved that defendant converted it in any one of several different ways. The proof was that defendant received the...