Citation Numbers: 35 Minn. 496
Judges: Vanderburgh
Filed Date: 9/7/1886
Status: Precedential
Modified Date: 9/9/2022
The defendant held a chattel mortgage against plaintiff upon the wheat described in the complaint, and other personal property, which was given to secure a note for $1,100, with interest at 10 per cent., dated May 1,1888, and due October 1,1883. The mortgaged property was left in the possession of the plaintiff, but the mortgage contained a provision allowing the defendant, in certain contingencies, to take the property into his own possession at any time.
The complaint alleges that the wheat was wrongfully taken from the plaintiff by defendant on the 28th day of September, 1883, and after-wards converted by him; and the court so finds, though, by what is evidently a clerical mistake, the date is fixed as of October 28th. The court also finds the value of the wheat taken at 82 cents per bushel, and the amount at 610 bushels, which are the price and amount as fixed by defendant in his testimony. It is also found that, after the wheat was so taken by defendant, “he advertised and sold the same under said chattel mortgage.” It is admitted that the note and mortgage were usurious.
The principal question in the case is the effect of the alleged delivery of the possession of 'the wheat, as evidenced by the writings above referred to, prior to the alleged seizure and conversion. The ¡defendant contends that such delivery was a voluntary surrender of he property, upon or in payment of the mortgage, such as to prelude the plaintiff from raising the question of usury, or recovering he wheat or its value. The court, however, finds that such was not he nature of the transaction, and that the wheat was not turned over [■o the defendant in part-payment of the note, nor with the understanding that the title should pass absolutely, but for the purpose of surrendering the possession thereof to the defendant; as mortgagee, imply.
We think there is sufficient evidence in the case to support the nding. It appears that the defendant deemed himself insecure, and ent out to plaintiff’s farm, and had some negotiations with plaintiff
There was evidence on the part of defendant tending to prove a voluntary settlement subsequent to the taking, and an allowance and indorsement upon the note of the value of the wheat taken, by the mutual consent and agreement of both parties; but this is denied by the defendant, and the court finds otherwise. Under the findings of the court, the constructive delivery of the wheat to Eussell Wetherell, to hold for the mortgagee, was not a transfer or application of the same in payment upon this note. Plaintiff might still defend against the mortgage, or resist its enforcement, and reclaim the wheat. The action can therefore be maintained.
2. The mortgage included, in addition to the wheat, certain livestock and cattle belonging to the plaintiff, and they were also mentioned in the written instrument purporting to turn over the mortgaged property to the defendant, and receipted for by Russell Weth-erell. They were subsequently taken by defendant, and an action of replevin was brought to recover the same by the plaintiff. In that action the defendant recovered, and the judgment therein is pleaded in bar in this action. The plea, however, cannot be sustained.. The amended pleading in that action raised no issue of usury, and plaintiff did not claim to recover on that ground. He was at liberty, in
We have examined the entire record with much care, and fail to discern any other errors which substantially affect the merits of the case, which is necessarily disposed of on the ground first considered.
Judgment affirmed.