Gruner v. Star Printing Co.

40 Wis. 523 | Wis. | 1876

Cole, J.

The plaintiff’s right to recover the property in dispute must rest entirely upon the chattel mortgage mentioned in the case. That instrument was the foundation of his title, and if it had ceased to he a lien when the defendant in good faith purchased the property, there could he no recovery. The controlling question then is, "Was the mortgage a valid lien upon the' property when "Weber sold and transferred it to the defendant?

The evidence is conclusive that the mortgage was withdrawn from the office of the city clerk on the 30th of December, 1874, and that this was done by the éxpress authority of the plaintiff. He gave written authority to "Weber “ to withdraw and destroy” the mortgage; and the case, therefore, is quite unlike that of Swift v. Hall, 23 Wis., 532. In that case the agent exceeded his authority in taking the mortgage from the files, and this court held that the lien was not thereby lost, it appearing that the mortgagee exercised due diligence in restoring the mortgage to the files. Bnt here there is no ground for saying that "Weber was not fully authorized to withdraw the mortgage from the files, or that he did not actually withdraw it before the sale of the property to the defendant was complete. The bill of sale bears date January 1, 1875, the day the defendant was legally organized or had an existence. As there can be no dispute about these facts upon the evidence, it must be held that the defendant took the property discharged of the lien created by the mortgrge.

Bnt it was claimed on the part of the plaintiff, and an effort was made to show, that Weber’s authority to withdraw and cancel the chattel mortgage, and to transfer the plaintiff’s interest on a sale of the property to the defendant, was qualified or restricted by secret instructions contained in a letter. When the mortgage was delivered to Weber, the written authority to him to withdraw and cancel the mortgage was filed with the cleric, and that authority is not qualified by any restriction. It is absolute in its terms. If Weber violated his instructions in regard to the conditions upon which he was to sell the'plaintiff’s interest, this would not restore the lien of the mortgage. And besides, these conditions relate to the transfer of the plaintiff’s interest to the defendant, not to the discharge of the mortgage. It is said that Weber was instructed to dispose of the property to the defendant only upon condition that the plaintiff and Weber were to be employed and have control of the bindery, and were not to be discharged without their consent. Row, it is said, the defendant has refused to employ the plaintiff according to that agreement. Conceding all this to be as claimed, how does it affect the question as to the lien of the mortgage? The lien of the mortgage was lost when the mortgage was taken from the files and destroyed by the authority of the plaintiff. It appears that this was partnership property belonging to Weber and the plaintiff. By the arrangement entered into, it was transferred to the defendant as so much capital stock. Certificates of stock were issued, and the plaintiff accepted his certificate and retained it until he returned from California in July. In view of these facts, it is a most extraordinary claim that he now makes, that the chattel mortgage is still in force. It seems to us that it has no foundation in law.

We think the judgment of the circuit court must be affirmed.

By the Gowrt. — Judgment affirmed.