Dornbrook v. M. Rumely Co. , 120 Wis. 36 ( 1903 )

Siebecker, J.

The order of July 6, 1900, for the purchase of the threshing machine outfit by John L. Dornbrook from the M. Rumely Company, and the fact that the M. Rum-ely Company accepted his individual notes and chattel mortgage on the property sold, clearly indicate that it treated him as the purchaser. Under these facts and circumstances it was immaterial whether respondent knew his son had given appellant a chattel mortgage, nor was it material to inquire whether he knew or ought to have known that John L. Dorn-brook fraudulently intended to hinder and delay his creditors in giving the chattel mortgage. The facts that respondent received his chattel mortgage to secure the payment of the sum of $1,090 actually due him from his son, and that this mortgage was filed with the town clerk of the town of Springvale, where the mortgagor resided, and where the property was actually located at the time, and the further facts that appellant omitted to file its mortgage with such town clerk, and had not taken possession of the chattels under it, left nothing further necessary as matters of fact upon which to determine the rights of the.parties. This situation rendered appellant’s mortgage void as against respondent’s under secs. 2313 and 2314, Stats. 1898, which declare that “no mortgage of personal property shall be valid against any other person than the parties thereto unless the possession of the mortgaged property be delivered to and retained by the mortgagee or unless the mortgage or a copy be filed” as provided in the last section. It is not asserted that the conditions of the statutes were complied with on the part of the appellant, and its claim to any interest in this property under the mortgage was therefore without any foundation in law. The court properly awarded judgment that respondent is the owner and rightfully entitled to the possession of the chattels so wrongfully taken and detained by appellant. The Ryan Drug Co. v. Hvambsahl 89 Wis. 61, 61 N. W. 299; Parroski v. Goldberg, 80 Wis. 339, 50 N. W. 191; Blakeslee v. Rossman, 43 Wis. 116; Wagg-Anderson W. Co. v. Dunn, 92 Wis. 409, 66 N. W. 354.

As appears in the above statement of facts, the jury found that respondent, when he took his chattel mortgage, had no knowledge that appellant had a chattel mortgage upon this property, nor that John L. Dornbrook intended to hinder, delay, and defraud his creditors, and that he did not collude with John L. Dornbrook in the foreclosure and sale of the property. It also appears that he had no knowledge of-the misstatement made by John L. Dornbrook in the order of March 28, 1900, wherein he gave his residence as in the town of Metomen, instead of the town of Springvale, his actual residence. In view of this state of facts, the contention of appellant that respondent was guilty of collusion and fraud, which resulted in misleading it, and thereby causing it to file its chattel mortgage with the town clerk of the town of Metomen instead of the town of Springvale, the actual residence of John L. Dornbrook, is without foundation. The facts thus established leave no room for charging respondent with fraud in these transactions, and upon this ground no liability can be asserted against him.

Appellant urged some exceptions to the court’s charge to the jury as prejudicial error. In view of the undisputed facts above referred to, the case was properly one for the court to direct a verdict in respondent’s favor, and therefore any error in charging the jury would be harmless, but since no portion of the charge appears in the bill of exceptions, we could not review any exception taken thereto on the trial were the case on appeal not disposed of as above indicated.

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