Woodruff v. King, 47 Wis. 261

47 Wis. 261 | Wis. | 1879

■ORTON, J.

The first error complained of, that the note and mortgage, the foundation of the plaintiffs’ title, were received in evidence without proof of their execution — if error it was, which we do not decide, — was cured by the testimony of Charles E. Woodruff, taken immediately thereafter, and received without objection, in proof of their execution. Zimmerman v. Fairbank, 35 Wis., 368; McPherson v. Rockwell, 37 Wis., 159.

The objection that the assignment of the mortgage to and the ownership of the note and mortgage by the respondents were not proved, cannot be very intelligently considered, on account of the absence of the note and any copy of it from, the evidence and papers in this court. It is conceded that there was no formal assignment of the' mortgage, although it was proved that the respondents had purchased the note and mortgage from James H. Woodruff, the mortgagee, for value; and their transfer, therefore, depends upon the negotiability of the note. It was, however, claimed and insisted by the counsel of the respondents, upon the argument, that it was negotiable, and this fact was either admitted or not denied by the counsel of the appellant; so that it will be assumed that it was, and this disposes of the objection; for the possession and production of the note, so negotiable, by the respondents, were prima facie or presumptive evidence of its ownership by them (Story on Prom. Notes, § 381), and the transfer of the note carried with it the mortgage security. Croft v. Bunster, 9 Wis., 503; Rice v. Cribb, 12 Wis., 179.

The point made that Charles E. Woodruff, one of the copart-nership of Woodruff & Grist, could not so execute the chattel mortgage, even to secure a partnership debt, without the consent of his copartner, is not well taken. The authorities upon the direct question here presented are nearly if not quite uniform in favor of such right. Herman on Chattel Mortgages, § 118, and cases cited in note 4; Milton v. Mosher, 7 Met., 244; Purviance v. Sutherland, 2 Ohio St., 478; Sweetzer v. Mead, 5 Mich., 107. And these last named authorities are also clear and to the point that the attachmentof a seal to the chattel mortgage would not "affect such right, because unnecessary to such an instrument. It was claimed upon the trial that, before the note and mortgage were executed, the firm of Woodruff & Grist had dissolved, and all the personal property .of the concern, including the horses in dispute, became the individual property of Grist, who sold the horses to the appellant; and it was shown that the mortgage was duly filed in the town clerk’s office long before such sale. It was therefore an important question, whether any public notice or personal notice of such dissolution had been given before the execution of the mortgage, so as to charge the mortgagee, James H. "Woodruff.

The court below charged the jury, in respect to this question: “ If the evidence in this case satisfies .you that the co-partnership between Woodruff and Grist has ceased to exist by mutual consent of the members thereof; that the public had received notice of such dissolution/ and that a part of the conditions of such dissolution was that the horses in question had been assigned, sold and delivered to the defendant as his property — then the partner Woodruff had no right to encumber the same by chattel mortgage.” The learned judge probably intended by defendant, the partner Grist, the vendor of the property. Exception is taken to that part of the instruction in italics.

This instruction, if objectionable at all, must be so because of its being too favorable to the appellant; for the jury are instructed to find for the defendant, if they find the facts mentioned, and that a public notice of the dissolution had been given, whether personal notice of such dissolution was given to the mortgagee or not, before taking the mortgage.

But, favorable or unfavorable to the appellant, his learned counsel contends that it was erroneous because it did not express the whole law upon the subject of such notice, and include both public and personal notice. This objection is fully met by other parts of the charge, which give protection to the mortgagee only if he had no notice whatever, either public or personal, of the dissolution; as in the language of the third instruction, “neglecting to give public notice,” and “who has no notice;” and of the fourth instruction, “and the plaintiff herein had no notice of the dissolution.” The instructions, taken together, contain a full and correct expression of the law upon the subject.

The jury coming into court and asking that the charge of the court be again read to them (whether for the purpose of instruction upon tire law to one or all of tliem), -which, is complained of here as error, is a practice not only common, but approved by all authorities.

The only remaining question to be disposed of is, whether the verdict is incomplete and insufficient in not finding the mortgage interest, and the value of the special property of the respondents in the property taken by the writ. The respondents have possession of the property, having given the bond required by the statute, and recovered upon all the issues, and of course there was no return of the property awarded. The doctrine established by this court, in analogy to the practice in a justice’s court in this form of action, is, that when a return of the property may be awarded as an alternative with judgment for its value, then, and then only, the interest of the successful party should be ascertained, in fixing the value of his special property which is to be the limit of such judgment. Booth v. Ableman, 20 Wis., 21; Battis v. Hamlin, 22 Wis., 669; and Warner v. Hunt, 30 Wis., 200. This practice cannot be extended to a case like this, where the plaintiffs were entitled to the possession of the property under the chattel mortgage, to be disposed of by them according to the terms of the mortgage, and according to law, to satisfy the mortgage debt, or the part thereof remaining unpaid, whatever it may be.

By the Court. — The judgment of the circuit court is affirmed, with costs.