Standard Paper Co. v. Freie Presse Co.

• Decision Date: 03 November 1886
• Citation: 67 Wis. 101,30 N.W. 298
• Parties: STANDARD PAPER CO. v. FREIE PRESSE CO., AND ANOTHER, GARNISHEE.
• Court: Wisconsin Supreme Court

67 Wis. 101

30 N.W. 298

STANDARD PAPER CO.

v.FREIE PRESSE CO., AND ANOTHER, GARNISHEE.

Supreme Court of Wisconsin.

November 3, 1886.

Appeal from circuit court, Milwaukee county.

Garnishee proceeding. Trial without a jury. Judgment against garnishee, who appeals.Dey & Friend, for respondent, Standard Paper Co.

Frisby, Gilson & Frisby, for appellant, Freie Presse Co.

TAYLOR, J.

The Standard Paper Company brought an action against the Freie Presse Company to recover the amount due the plaintiff on account for goods sold and delivered to the defendant, and in said action the appellant was garnished; the plaintiff claiming that he was indebted to, or had property in his possession belonging to, the Freie Presse Company. The garnishee defendant appeared and answered, denying all liability as garnishee. The respondent took issue upon this answer, and the case was tried by the court without a jury.

The evidence disclosed the following facts: That on the seventeenth of March, 1884, the Freie Presse Company was justly indebted to the garnishee, Guenther, in the sum of about $6,000. On that day said company gave the garnishee six promissory notes, for $1,000 each, drawing 6 per cent. interest; that, to secure the payment of five of said notes, the company, on May 10, 1884, executed a chattel mortgage upon the personal property of said company. The mortgage was not filed in the proper office until November 12, 1884, and the garnishee took possession of the stock, under his mortgage, March 31, 1885. Mr. Guenther testified “that the mortgage was not filed at the time it was executed, at the solicitation of the manager of the Freie Presse Company. He said if the mortgage was not recorded he could get business for the paper, advertising, etc., and get it at a paying basis; but if it was recorded it would hurt his paper, and interfere with his property and advancement, and he begged me not to do it, and I consented.” He also testified that he afterwards put it on file, because he was informed the company was trying to get money, and give another chattel mortgage on the same property.

The evidence on the part of the plaintiff showed that all the account for which the action was brought, except a very small amount, accrued between the date of the mortgage and the date of its filing; that the paper company had no knowledge of the existence of the mortgage until it was put upon file. A witness for the plaintiff company testified that he was president of the company, and that during the time of the sales to the Freie Presse Company it was his duty to pass upon credits given by the paper company; that he did not know of the existence of this mortgage until it was placed on file in November. “ In our business we have notice of all these public records.” So far as he knew, none of the company knew of the mortgage before it was filed. “I should say the property of the Freie Presse Company, when we dealt with them, was from $5,000 to $8,000, possibly $10,000. I knew of this when we extended the credit. Was through their office. Did not know of any incumbrance at the time on the property. I think I can say absolutely none of the other officers knew of the mortgage. This comes under my particular part of the business, and they knew nothing about it until we got our reports from agencies, notifying us that such a mortgage was recorded.”

It was conceded on the trial by the plaintiff's counsel that there was no claim of any actual intent to defraud any creditors of the Freie Press Company on the part of the defendant, Guenther, in withholding his mortgage from record. The plaintiff also gave evidence of the amount of its claim against the Freie Presse Company. Upon this evidence the court found: (1) That the Freie Presse Company was indebted to the plaintiff in the sum of $493 damages and costs at the time of the trial, November 11, 1885, making, in all, $530.41, with interest and subsequent costs. (2) The execution and delivery of the mortgage, as stated by Mr. Guenther, upon the property owned and used by the Freie Presse Company in its business of publishing a newspaper in the city of Milwaukee. (3) That such mortgage was not filed until November 12, 1884, and Guenther did not file said...