Standard Imp. Co. v. Schultz
Decision Date | 06 December 1890 |
Citation | 25 P. 625,45 Kan. 52 |
Parties | THE STANDARD IMPLEMENT CO. v. C. H. SCHULTZ et al |
Court | Kansas Supreme Court |
Error from Saline District Court.
THE case is stated in the opinion.
Judgment reversed and case remanded.
Garver & Bond, for plaintiff in error.
Lovitt & Norris, for defendants in error.
VALENTINE, J.
OPINION
The Standard Implement Company commenced an action in the district court of Saline county against the firm T. C. Ritter and Co., and attached their stock of hardware. Schultz & Hosea, who claimed to have a chattel mortgage on the stock, interpleaded, and claimed that their chattel mortgage was a first lien. A trial was had on the interplea, and the court made the following findings of fact and of law:
The implement company moved for judgment on the findings of fact, and also made a motion for a new trial. Both motions were overruled. The case is here for review, the sole question being as to whether or not the mortgage is fraudulent as to creditors. Both sides cite and rely on the cases of Frankhouser v. Ellett, 22 Kan. 127, and authorities cited in that case; Howard v. Rohlfing, 36 id. 357; Whitson v. Griffis, 39 id. 211. To these may be added the case of Leser v. Glaser, 32 Kan. 546, 4 P. 1026. The true test of the validity of a chattel mortgage under such a similar circumstance is stated in the case last cited, and is as follows:
"All cases in which a power of sale of the goods by the mortgagor is provided for, are therefore to be tested by the questions, whether such sales are to be made in his own behalf and at his own discretion and with the control of the proceeds reserved to him; or whether they are to be made solely in pursuance of the trust as a real one, that is, for the benefit of the mortgagee, and with provision that the proceeds shall be applied on his debt."
The only stipulation in this chattel mortgage is that "the mortgagors shall retain possession of all of said described property, all of which they agree, in consideration of such possession, shall be kept in as good condition as it now is and taken care of at their sole expense." There is no stipulation about the manner of daily sale, or how the proceeds of daily sales shall be applied; in fact, the court states as a conclusion of fact in the second finding that there was no special agreement between the mortgagors and the mortgagees about selling the property. If the chattel mortgage gave no power to the mortgagors to sell, and if there was no express oral agreement between the mortgagors and the mortgagees about daily sales and the application of the proceeds, it is probable that the mortgage would be held good, but the findings of fact recite that "the business after the giving of the mortgage was carried on the same as before . . . ; the proceeds of sales were used by Ritter & Co. as they saw fit -- for the payment of general expenses and debts, and without special regard to this mortgage debt!" "The resident agent of the mortgagees knew the manner in which the business was being conducted and never made any objection thereto." By these findings a case is presented in which the power of sale by the mortgagors is recognized and acquiesced in, and this power of sale and the application of the proceeds of such daily sales are made by the mortgagors on their own behalf and at their own discretion, the proceeds being subject to their absolute control, and the sales are not made and the proceeds applied solely in pursuance of the object and purposes of the chattel mortgage for the benefit of the...
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