Warder v. Baldwin

• Decision Date: 02 March 1881
• Citation: 51 Wis. 450,8 N.W. 257
• Parties: WARDER AND OTHERS v. BALDWIN.
• Court: Wisconsin Supreme Court

51 Wis. 450

8 N.W. 257

WARDER AND OTHERS

v.BALDWIN.

Supreme Court of Wisconsin.

Filed March 2, 1881.

Appeal from circuit court, Dane county.

Smith, Rogers & Frank, for appellants.

Welch & Botkin, for respondent.

TAYLOR, J.

The appellants brought their action in a justice court against the respondent to recover the value of a reaper which they allege the respondent unlawfully took from their possession and converted to his own use,--alleging the value of the reaper to be $125,--and claim damages to the amount of $150. They also alleged, by way of special damage, that whilst the respondent detained the reaper in his possession they had an opportunity of selling the same, and did in fact enter into an agreement for the sale thereof, and that by reason of the unlawful taking and holding of it by the respondent, they were unable to complete the sale, to their damage of $40.

The respondent's amended answer is-- First, a general denial; second, that the defendant, at the time mentioned, was sheriff of Dane county, and that one W. J. Ryan was one of his deputies; that a writ of replevin, lawfully issued by a justice of the peace of said county, in an action by one Dahling, plaintiff, against Taylor & Towne, defendants, was placed in the hands of his said deputy; that by such writ he was commanded to seize the identical property described in the appellants' complaint as the property of said Dahling, the plaintiff in said replevin action; and that by virtue of said writ his said deputy seized the property described in the appellants' complaint, and made due return thereof; that in such action of replevin judgment was rendered in favor of the said plaintiff Dalhing, and against the said Taylor & Towne, who appealed from such judgment to the circuit court, and that said deputy was ordered by said court to hold said property pending the perfection of such appeal. This answer admits that, at the time of the service of such writ of replevin by the deputy of the respondent, the property was in the possession of the plaintiffs in this action through their agents, Taylor & Towne. As a third answer, the defendant alleges that after his deputy had seized said property by virtue of said writ of replevin, he notified the plaintiff, Dahling that he required him to give a bond of indemnity for his protection, and that said Dahling failed to do so, and thereupon said deputy offered and tendered to said Taylor & Towne, the agents of the said plaintiffs, a release of said property in the same place as to location, and in the same condition in which it was first seized by the warrant of replevin; that said agents of the plaintiff refused to take such surrender, and have continued so to do, and then in their answer renewed the offer to surrender all claim to said property, as made and tendered on the trial of this action, and paid into court the taxable costs, and four cents as nominal damages.

To understand clearly the last clause of the third defence it must be understood that the amended answer was filed after the action had been appealed to the circuit court; and that in the answer made by the respondent in the justice court an offer was made by the respondent to return the property to the plaintiffs, or their agents, and he paid into court the taxable costs, $1.75. It is also proper to add that this action was commenced before the appeal had been perfected by Taylor & Towne in the replevin action set out in the answer. Upon the trial the appellants introduced evidence showing that at the time the respondent's deputy seized the reaper by virtue of his writ of replevin in the case of Dahling v. Taylor & Towne, a firm of the name of Taylor Bros. owned the reaper in question; and that plaintiffs had a chattel mortgage thereon, given to them by said Taylor Bros. to secure to them the payment of two promissory notes signed by Taylor Bros., amounting to $184.32. The chattel mortgage was in the usual form, allowing the mortgagors to retain possession until the mortgagees should take possession, as provided in such mortgage. The provisions as to taking possession by the mortgagees were those usual in such mortgages, for the purpose of making sale of the mortgaged property to pay their debt; and, also, that if at any time the mortgagees should deem the property or debt insecure, they were authorized to take immediate possession, and sell the same to pay their debt. There does not appear to have been any question made upon the trial as to the ownership of the property by the plaintiffs under their chattel mortgage, or as to their right to the possession thereof as against the respondent, or his deputy, at the time he seized the same under his writ of replevin, unless they are estopped from setting up such ownership and right of possession by reason of the acts of the appellants' agents at the time said property was seized by the deputy of the respondent. It seems to have been conceded on the trial that the reaper in question was not the one described in the writ of replevin, under which the seizure was made, and that, by mistake of the deputy and Dahling, this reaper was seized instead of the one which Dahling claimed to own, and for the seizure of which the writ was issued, and which was, in fact, in the possession of Taylor & Towne, or Taylor Bros., at the time the writ was issued, and at the time the seizure was made.

The reaper in controversy in this action was, as appears from the evidence, in the possession of Taylor Bros. at the time the same was signed by the deputy of the respondent, and it was in their possession as owners and mortgagors. There is nothing in the evidence which shows...