Hanson v. Kassmayer ( 1905 )

SCOTT, J.

The default in making payment as required by the chattel mortgage is admitted, and thereby the plaintiff’s right to foreclose was. established. Upon what theory of the case judgment was rendered for the defendant is not perceived. The defendant’s so-called counterclaim asserts that the plaintiff in selling the goods made a false warranty of title, whereby 'defendant was damaged. Even if such a counterclaim could properly be considered, it is unsupported by proof. It is said that some person claiming to represent the Royal Furniture Company took a portion of the mortgaged chattels from defendant, claiming to be entitled to them under a prior chattel mortgage. There is no competent evidence, however, that there was such a mortgage, or, if there was, that it covered the chattels taken, and there is affirmative evidence that no such mortgage was filed as required by the lien law. The defendant therefore failed to prove the main allegation of her counterclaim as to the breach of the warranty of title. Nor was there the slightest evidence of damage.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.