Pierce v. Wagner
| Decision Date | 27 April 1896 |
| Docket Number | 9886--(201) |
| Citation | 66 N.W. 977,64 Minn. 265 |
| Parties | HAROLD E. PIERCE v. W. A. WAGNER |
| Court | Minnesota Supreme Court |
Rehearing Denied 64 Minn. 265 at 268.
Action in the municipal court of Duluth against W. A. Wagner defendant, and National Bank of Commerce, garnishee. Pabst Brewing Company intervened as claimant. The court, Edson, J. found in favor of plaintiff and against the claimant. From an order denying a motion for a new trial, the claimant appealed. Affirmed.
Order affirmed.
Austin N. McGindley, for appellant.
Wilson & Wray, for respondent.
The defendant, being engaged in the saloon business, and having borrowed of the claimant $ 1,000, with which to pay his license, executed to it a chattel mortgage on his stock of liquors and saloon supplies, of the value of $ 1,500, to secure the loan and interest, payable in twelve monthly installments, according to the conditions of twelve promissory notes. Seventy-three dollars of the receipts from the sales of the liquors and supplies in the saloon having been deposited with the garnishee by defendant to his own credit as "agent," the plaintiff garnished it as defendant's property. Thereupon the claimant intervened, and claimed the money under its mortgage. The plaintiff contends that the mortgage was fraudulent and void as to the creditors of the defendant. The trial court found that this contention was true; and whether this finding was justified by the evidence is the only question presented by this appeal.
The only provisions of the mortgage that are material were substantially as follows: The mortgagor covenanted that, until the full payment of all the notes secured by the mortgage, he would, by purchases from time to time, keep the stock of at least the average value of $ 1,500. To that end, it was provided that the proceeds of sales in the saloon should be used by the mortgagor in the purchase of new stock as far as necessary to keep the stock of the value of $ 1,500; also, that the mortgage should be a lien upon the new stock, as well as that then on hand. The residue of the proceeds of sales by the mortgagor was to be used by him in defraying and paying all necessary expenses in carrying on and conducting the saloon, and the balance to be used alone in payment of the notes secured by the mortgage, and not to be diverted to any other purpose. The mortgagor covenanted to pay over to the mortgagee such surplus of the proceeds of sales. The mortgagee appointed the mortgagor its agent to sell the liquors and supplies at retail, to purchase supplies for the saloon from time to time, to pay off the necessary expenses connected with the carrying on the saloon, and to pay over the surplus of the proceeds of sales, from time to time, to be credited on the notes.
The oral evidence in the case clearly shows that the mortgagor conducted and...
To continue reading
Request your trial