Lierman v. O'Hara, 153 Wis. 140

153 Wis. 140 | Wis. | 1913

Siebecker, J.

The main contention of the plaintiff is that the court erred in holding that the mortgage from Neitzke to Steinmueller was a valid instrument. The mortgage was properly executed and recorded and states that it was given to secure an alleged promissory note of $690.10. A written paper in the form of a promissory note for this amount and payable to Eied Steinmueller bad been drawn, but was not signed by Max Neitzke. It, together with a chattel mortgage, was delivered to Steinmueller, who accepted them without inspection in the belief that they were properly executed and that they expressed the contracts between himself and Neitzke, his debtor. It is now claimed by the plaintiff that the omission to sign this intended promissory note renders the mortgage void and of no effect, and that the defendants, when they took possession of the mare in proceedings based on this mortgage, had no authority or right so to take her and hence were guilty of a wrongful taking and conversion of plaintiff’s property. The case of Follett v. Heath, 15 Wis. 601, is relied upon for support of this claim. As stated in Paine v. Benton, 32 Wis. 491, 495:

“The rule of Follett v. Heath is not to be extended beyond the facts in the case then before the court. The facts there were, that the mortgage gave a totally false description of the note intended to be secured, or which was so claimed. The description was false and foreign in every particular, save that the names of the parties to the note, maker and payee, were correctly given. The note described differed, in amount, date and time of payment, altogether from that held by the mortgagee.”

In the instant case there is no such infirmity in the transaction between the parties. There is no dispute but that the mortgage correctly describes the written paper except as to the signature, and correctly states the amount of the debt due Steinmueller from Neitzke and the terms and conditions: agreed on by the parties for payment of the debt. It is manifest that Neitzke, through inadvertence, omitted to sign this intended promissory note as the parties had arranged, and that on this account it never became a promissory note. It is, however, a correct memorandum of the amount of Neitzke’s indebtedness to Steinmueller and expresses the terms and conditions agreed upon by the parties for its payment, and corresponds with the description of it in the mortgage, except that it is not signed. . Erom the undisputed facts in the case it is obvious that, although the writing is not an executed promissory note corresponding, with the provisions of the mortgage, the mortgagor intended to secure his indebtedness to the mortgagee, as stated in the mortgage and the unsigned writing which refers to the existing indebtedness intended to be secured. The written memorandum can properly be treated as evidence of the debt which the mortgage was given to secure. Under the facts and circumstances the omission of Neitzke to sign this paper did not mislead any person. The conditions in the mortgage and the contents of this writing expressing the terms of payment of this debt correspond with sufficient accuracy to show the indebtedness which the parties sought to cover and secure by the mortgage. The discrepancy may be disregarded as not necessarily fatal to the validity of the mortgage. Weber v. Illing, 66 Wis. 79, 27 N. W. 834; Rock v. Collins, 99 Wis. 630, 637, 75 N. W. 426; Lee v. Fletcher, 46 Minn. 49, 48 N. W. 456.

It is urged that the mortgage was duly paid and canceled before Steinmueller took any steps to get possession of the mare, because he failed to file an affidavit, as required by ch. 122, Laws of 1903, within ten days after selling another horse covered by the mortgage. The evidence shows that the mortgagor assented to have this horse sold under the mortgage and the proceeds applied in part payment of his debt. Under such circumstances the mortgagee is not required to file the affidavit specified in this statute. Hammel v. Cairnes, 129 Wis. 125, 107 N. W. 1089; F. A. Patrick & Co. v. Deschamp, 145 Wis. 224, 129 N. W. 1096.

We find no reversible error in the record.

By the Court. — Judgment affirmed.