Ogden v. Stewart

Breese, J. We do not consider it necessary to go over the whole ground covered by the able arguments of the parties in this case, inasmuch as we base our decision on a single fact which has not been controverted. The evidence shows, that Harrison & Bennet purchased certain liquors in barrels, half-barrels and bottles, of one Amsler, on the 7th of February, 1861, for which they executed tfyeir notes, and to secure the payment of them, also executed a chattel mortgage to the vendor covering the property purchased. They kept a tavern, with a bar for drinking, and sold from this stock of liquors from the time of the purchase until about the last of July, 1861, when their place of business was destroyed by fire. A few days after the fire, they sold out what remained of the liquors to the plaintiff, and delivered them to him. During this time, about six months, Harrison & Bennet replenished their stock by purchases of liquors in Peoria, St. Louis and Cincinnati, and they testified there was but little of the original stock left when they sold to the plaintiff. After the delivery to the plaintiff, the defendants, who had sued out a writ of replevin for the goods against Harrison & Bennet, acting for Amsler, took possession of the goods under the writ, whereupon the plaintiff replevied them from the defendants, which is this action. The defense, among other things, was, that the goods were the property of Amsler, and were not the property of the plaintiff, and that the sheriff and deputy sheriff of Peoria county, having a writ of replevin for the goods at the suit of Amsler v. Harrison & Bennet, they took the goods, etc. It was abundantly proved on the trial, that, after the purchase by Harrison & Bennet of Amsler, he remained with them a week, during which time they were selling the liquors daily from this stock, and so continued, with Amsler’s knowledge, and without objection from him, up to the day of the fire, and until the remnant was sold to the plaintiff. The mortgage contains the usual provision, that the goods should remain with the mortgagors until all the notes became due, but reserves to the mortgagee the right to take possession of them and make his whole debt, if he chose, on default of payment of any note at maturity, or in case of a levy, or disposal of the same. The proof shows, that notwithstanding this clause, the mortgagors, with the full knowledge of the mortgagee, were selling daily from these liquors to their customers, and this, we think, was a waiver of this provision of the mortgage. Having allowed them to sell portions of the property, and which, from the nature of the transaction, was the main object of the purchase, and this selling was public and notorious, an authority was given to sell the remnant to the plaintiff or any other person. After this conduct on the part of the mortgagee, it would be fraud on any purchaser to repudiate their authority to make the sale. He should not now be allowed to deny their authority to dispose of the property, the more especially as the sale seems to have been Iona fide. The judgment is reversed, and the cause remanded. Judgment reversed.