Moak v. Bourne, 13 Wis. 514

Moak v. Bourne

13 Wis. 514 | Wis. | 1861

&y the Court,

Paine, J.

This -was an action to recover possession of personal property. Tlie facts material to an understanding of the question presented may be briefly stated as follows: Bourne, the defendant, was the owner of a saw mill, and personal property used in operating it, and also of a quantity of lumber and logs. He gave a chattel mortgage upon the personal property, among which was a yoke of oxen, to secure the payment of several notes and debts mentioned in the mortgage. After a default by the mortgagor, the parties made a further agreement, by which he leased his mill to those interested in the debts, and they were to run it, saw the logs, sell the lumber and apply the proceeds, first to expenses, and next to the payment of the debts in the order in which they were mentioned in the mortgage. This agreement, which was made in August, 1858, provided that if enough of the lumber should not be sold by the 1st of the following January, to pay the indebt'edness, it might then, on six days’ notice, be sold at public auction to the highest bidder,' and the proceeds applied to the expenses, and then to the debts. It also provided that the interest of each of the creditors should cease as soon as he was paid off, and that in case of a sale at public auction, the balance, after paying the indebtedness, should revert and belong to the mortgagor. Under this agreement the mortgagees took possession of the mill and personal property. While they were in possession, Bourne signed a paper giving them the right to sell at public auction at any time, without waiting till the first of January, 1859, and waiving the six days’ advertisement; the sale, however, to be for cash, or short approved paper. After running the mill awhile, the mortgagees caused such sale at auction to be made, but they bid off most of the property. After this a further lease of the mill was made by Bourne to them, upon an *517agreement that they were to pay nothing for the use of it, but were to nse it in sawing logs which had been bid off them, and that the proceeds should still be applied to the mortgage debts. With this understanding the mortgagees continued in possession, manufacturing and selling lumber, until the mortgagor, claiming that they had realized enough, over and above expenses, to pay off the mortgage debts, took possession of the property. And the plaintiffs, who had acquired the entire interest of the mortgagees, brought this action to recover the personal property.

The first question is, whether, supposing the mortgagees to have sold enough to pay themselves, over and above expenses, the mortgagor was entitled to the balance. We think he was. The counsel for the appellants relied upon those cases which hold that after default the interest of a chattel mortgagee becomes absolute. But we think that principle not strictly applicable here, for the reason that here is not only a chattel mortgage, but other agreements by the parties, upon which their rights materially depend. Taking all these written agreements in connection with the parol evidence upon the same point, we think they show an understanding that the mortgagees were to get their debts out of the property by using the mill for that purpose, and that their interest was then to cease, and the remainder to belong to the mortgagor. This is expressly provided for in the first lease, and the mortgagees testify that such was the understanding. The last lease, in speaking of the logs as having been bid off by the mortgagees, and being then owned by them, might serve to throw some doubt upon this point at that time, but we think the provisions of the lease itself show conclusively that the parties still had the same intention which had pervaded their entire agreements upon the subject. The mortgagees were to pay nothing for the mill, and were to apply the proceeds of the lumber sawed from these logs upon the mortgage debts. It is incredible that such an agreement could have been made, except upon a continuation of the idea that they were to get only their debts out of the property, and that the balance was to belong to the mortgagor. There was no other consideration *518for the lease of the mill. We think, therefore, the court be-properly held, tbat if they had paid themselves, the balance belonged to the mortgagor.

Nor do we think it was erroneous for the court to allow the mortgagor to show the value of the lumber disposed of by the mortgagees. It is true the ¡3oint of inquiry for the jury was, what amount they had realized from sales, over and above expenses. If they acted in good faith and with reasonable diligence in making the sales, that was all they were accountable for. Showing the value of what they had sold, would be a circumstance from which the jury might infer what they had received. If the mortgagees, by their testimony, could fix the amount more specifically, the jury, if satisfied that they acted in good faith, should charge them only with that amount. But evidence of the kind offered by the mortgagor was, perhaps, the only kind which, from the nature of the case, was accessible to him in the first instance, with the exception of calling the other parties, which though he might, still he was not bound to do.

Nor was it error to allow the mortgagor to show the value of the several grades of lumber at other mills in the vicinity of this, though a few miles distant. It is true such testimony did not apply directly to this lumber. But where an article is divided into several qualities and has established market prices, like lumber, if there is a dispute about the quality of the lumber in question, it would seem admissible to prove the market price of any of the qualities which the jury might find it to be, and leave them to apply the evidence accordingly. And it would be for the jury to say, from the evidence as to the quality and that as to the value of the various qualities there and in that vicinity, what was the value of that particular lumber.

The counsel for the appellants contends, that the verdict was against evidence, and that the court below erred in overruling the motion for a new trial. Without expressing any opinion upon the evidence generally, we think the verdict was against the evidence in one respect. It appears, beyond any question, that the yoke of cattle replevied did not belong to the mortgagor. He himself testified, that of the yoke *519originally mortgaged, one died, and be sold tbe other before tbe mortgagees took possession. It appears that tbe yoke was purchased by them while in possession, and that they never belonged to Bourne. Tbe verdict makes no distinction between them and tbe rest of tbe property, but delivers them with tbe rest to tbe mortgagor. This was probably because no point was made upon it at tbe trial, as it was doubtless overlooked in tbe beat of tbe controversy upon tbe more important points in tbe case. Still tbe objection that tbe verdict was against evidence is sufficient to enable tbe appellants to take advantage of it here. Tbe respondent’s counsel answers this objection by saying that the proof shows that Bourne bad really been charged with these cattle, under tbe bead of expenses, and if not, that it shows that they belong to Moak alone, and not to-tbe appellants jointly. But we think neither of these facts appears. J. J. Moak swears that be bought tbe cattle for tbe mill company, and that they were never charged to Bourne. It is true, be says be bought them with W. T. MoaMs money, and upon bis evidence tbe money should be regarded as advanced by W. T. Moak for tbe company.

Eor this reason, therefore, we think tbe judgment must be reversed, with costs, and a new trial awarded.