32 Minn. 193 | Minn. | 1884
Appeal from an order refusing to dissolve a temporary writ of injunction. The injunction was issued before the time to answer expired, upon the complaint and an affidavit supporting its allegations, and restrained the defendant until the further order of the Court from selling or disposing of certain flax seed. The relief prayed in the complaint is that defendant be enjoined from selling or otherwise disposing of the flax seed; that the amount plaintiff is entitled to recover in the action be adjudged and declared a specific lien on the flax seed; and such other or further relief as to the Court shall seem meet in the premises. The plaintiff’s right in the flax seed depends on an instrument in writing executed by defendant, by which, in consideration of a certain amount of flax seed furnished by plaintiff, he promised to pay plaintiff at a time certain $162 and interest; to sell and deliver to plaintiff at a certain sum, below the average Chicago market price at the time of delivery, all the crop of flax seed raised from that delivered to him by plaintiff, and by which, as security for the payment of said sum and delivery of said crop, he did “grant, sell and convey ” to plaintiff his entire crop of flax seed raised during the year from the seed furnished him, upon condition that if he should pay said sum of money, and well and faithfully perform the contract for the delivery of the flax seed, the sale should be void. It also provided that should defendant dispose of any of the flax seed to any one but plaintiff, he should pay plaintiff as liquidated damages therefor fifty cents per bushel for every bushel disposed of.
Within the proper time the plaintiff duly filed a copy of this instrument in the proper town clerk’s office. The complaint alleges breaches of the contract by failure to pay the $162 when due, and the refusal to deliver the flax seed, and a sale of about 450 bushels by defendant to others, and that he threatens to, and unless restrained, will dispose of the remainder to others, and that he is insolvent. The instrument is a chattel mortgage, both at law and in equity. The common law rule that no interest could vest by an assignment of chattels nor in esse, did not apply to crops to be raised by the assignor on land then owned by him or in his possession. (Canderman v. Smith, 41 Barb., 404; Acques v. Wasson, 51 Cal. 620; 1
There was, therefore, no case tor a temporary injunction made by the complaint and the supporting affidavit, and it should have been dissolved.
Order reversed.