74 Minn. 53 | Minn. | 1898
This action was commenced by the personal service of the summons and complaint upon the defendant Murphy, and a garnishee summons was at the same time served upon Brown, and a copy
The intervenors were partners in business, and in 1895 they sold lumber to Murphy, and for a balance due thereon of $65.19 they took back from Murphy a note, secured by a chattel mortgage upon twenty-five pigs, six months old, of the white Yorkshire breed, and other property. This property was then in the possession of the mortgagors, and the mortgage was duly filed, but never paid. On or about October 3, 1897, Murphy sold and delivered to the garnishee, Brown, at the agreed price of $90, thirteen of said pigs, without the knowledge or consent of the mortgagees, Brown at that time being the agent of the plaintiffs herein. Before and at the time of the delivery of the pigs to Brown, Murphy told him that the pigs were mortgaged to the Meehans, and Brown refused to pay for them. On October 14, 1897, the Meehans exhibited to Brown a certified copy of the chattel mortgage, and then and there demanded of him the said pigs, which Brown refused to deliver. It is further alleged in the complaint, and admitted by the demurrer, that by collusion with plaintiffs he caused himself to be garnished, so as to deprive these intervenors of their rights in said pigs. The intervenors demanded judgment against Murphy and Thomas Brown for the sum of $65.19, with interest thereon from January 28, 1897.
This complaint states a cause of action. It was competent for the intervenors to waive the tort, and sue for the value upon an implied contract. Downs v. Finnegan, 58 Minn. 112, 59 N. W. 981; Maxwell, Code Pl. 36. The note became due November 1, 1897, and there was a default in the conditions of the mortgage. The complaint in intervention was not made until November 13, 1897. The intervenors were then entitled to foreclose the mortgage by action, as well as recover the value of the mortgage. As the inter
Order affirmed.