Wineburgh v. Schaer

• Decision Date: 24 September 1884
• Citation: 2 Wash.Terr. 328,5 P. 299
• Court: Washington Supreme Court
• Parties: WINEBURGH, DOING BUSINESS UNDER THE NAME AND STYLE OF E. WINEBURGH & CO., v. SCHAER.

5 P. 299

2 Wash.Terr. 328

WINEBURGH, DOING BUSINESS UNDER THE NAME AND STYLE OF E. WINEBURGH & CO., v. SCHAER.

Supreme Court of Territory of Washington

September 24, 1884

Allen & Whitson, for plaintiff in error.

Reavis & Pruyn, for defendant in error.

TURNER, J.

This action was commenced in the district court of the Second judicial district, holding terms at Yakima City. The defendant in error filed his complaint in the court below for the foreclosure of a chattel mortgage upon a certain stock of goods, wares, and merchandise, making John Schaer, the mortgagor, E. Wineburgh, attaching creditor of the mortgagor and J. J. Tyler, sheriff of Yakima county, who served the attachment, defendants. The answer of E. Wineburgh admitted the taking on attachment by the sheriff, at his suit, of a portion of the stock of goods in question. For a further defense the answer sets up that the mortgagor, John Schaer at the time of the execution of said mortgage, and continuously thereafter, and until the attachment by the plaintiff in error, was a general merchant doing business at Yakima City, and was at the time he executed said mortgage and continuously until said attachment, and that he retained possession of said mortgaged stock of goods, all of which the defendant in error well knew; that the stock of goods continued in his possession, and that he was allowed to sell the same with the knowledge and consent of the defendant in error, and to apply the proceeds to his own use and benefit in the ordinary course of his business; that the plaintiff in error, E. Wineburgh, caused the attachment to issue on an indebtedness against the said John Schaer, contracted prior to the said mortgage, for $920.51, the same being the balance of an account for goods, wares, and merchandise sold by plaintiff in error to said John Schaer. To this answer the defendant in error interposed a general demurrer, which was sustained by the court; and, plaintiff in error electing to stand upon his demurrer, judgment was rendered against him. He brings the case to this court by appeal.

The only question presented for decision is as to the sufficiency of the answer of the plaintiff in error. If said answer constitutes a good defense, then the lien of the attachment, which it was the object of the defendant in error to have declared junior to the lien of his mortgage must prevail and defeat the mortgage. The question as to whether a mortgage of chattels, such as a stock of goods, is fraudulent per se, in cases where the mortgagor retains the possession, with power to sell and dispose of the goods in the course of his business, has been much considered and variously decided by the courts of this country. The cases upon each side of the question were called to the attention of the court in the argument of the case at bar and the reasons upon which they proceeded, and the force and effect which should be given to them upon principle, was ably discussed and illustrated by counsel upon both sides. If we were at liberty to do so, it would be profitable to take up these cases and attempt to extract from them the rule upon the subject that seems to be most consonant with sound reason. We are stopped on the threshold of the investigation, however, by an authority of such...