69 Wis. 288 | Wis. | 1887
On the 23d day of September, 1884, the respondent and plaintiff gave to the defendant, Hosp, a note for $800, due in two years, with interest, and, to secure said note, a chattel mortgage _ upon farming products, cattle, horses, farming implements, and many other things, constituting nearly everything the plaintiff had upon a certain farm that he was cultivating and occupying, of the value of over $1,300. In said mortgage there was the usual condition that, upon default of payment or violation of any of the conditions of said mortgage by the said plaintiff, the
The testimony tended to show, and the jury were warranted in finding, that the defendant not only took the property under this condition, but sold it, and converted it to his own use. When the defendant took possession of the property, or about that time, the plaintiff tendered and offered to pay the whole amount of said debt and interest, and the defendant refused to receive the same, with the threat that he would sell the property, and he accordingly did sell the property. It appears that the plaintiff had before that time paid a large part of said debt, and the defendant had voluntarily received the same. There was much evidence, but it all tended to prove these main facts. The learned circuit judge, as we think, charged the jury correctly, and virtually ruled, that the defendant was guilty of a conversion of the property. This question settled, there was nothing left except for the jury to find the value of the property, and the amount due upon the mortgage, or rather to become due, at maturity of the debt, and interest. This
There are many questions raised and discussed upon this appeal that do not appear to be material to the real merits of the case. This transaction would seem to be a very plain one on the evidence. There is nothing complicated or technical about it. The defendant as the mortgagee took possession of the mortgaged property with the intention of selling it, and did so sell it without any right whatever to do so. His pretense that he took possession of the property and sold it under the mortgage, or by virtue of the tQQrtgage, can avail him nothing. The mortgage gave him no such right. So far as the defendant’s conversion of the property is concerned, he was and is a stranger to the mortgage. That the court gave him the benefit of diminishing the amount of recovery for the conversion, by deducting the mortgage debt and interest up to the time of maturity, was an act of grace and equity most favorable to the defendant, and he cannot complain of it, but this does not change the real nature of this transaction as a fraudulent and tortious conversion of the plaintiff’s property. We do not think that there are any errors in the record affecting the right and justice of the case, or that are1 material. We shall not attempt to revise the finding of the jury on the value of the property, or the amount of the mortgage moneys. It certainty cannot be necessary to cite authorities to show that the defendant converted the property by
By the Court.— The judgment of the circuit court is affirmed.