Emerson-Brantingham Implement Co. v. Paul

Siebeckee, J. By sec. 2316c, Stats. 1915, it is provided that whenever the owner of a chattel mortgage shall take and sell the chattels covered by the mortgage he shall within ten days after the sale “make and file an affidavit setting forth,” among other things, “a statement in detail of the expenses of such sale including the cost of taking and keeping the prop.erty pending the sale. A copy of the notice of sale if any shall be attached to said affidavit and be deemed a part thereof.” This court, in Hammel v. Cairnes, 129 Wis. 125, 107 N. W. 1089, declared: “The statute under consideration is not only highly penal, but drastic in its character;” and “It is well settled that such statutes should receive strict construction in order to avoid forfeiture, if such can be done without doing violence to the language of the statute.” In Schoenmann v. Hood, 145 Wis. 241, 130 N. W. 101, the court states that the legislative object cannot be ignored and “the courts must . . . enforce it as it stands and award to all persons within its purview . . . whatever rights they may have acquired under it.” The affidavit herein filed, contains this: “Posting notice of sale, livery, and expenses, <$10. Expenses of taking and keeping property pending sale, $24. Total expense, $34.” There is no detail specification of the items of either charge, though it is admitted by the affiant that each amount includes different items, disbursed by the agent of the plaintiff. Concededly there is no copy of the' notice of sale attached to the affidavit. The claim that these defaults in 'complying with the statute are [592] unimportant and did not prejudice tbe defendant in any way is not well founded. These requirements are equally as important as any other to meet the calls of the statute. The trial court very properly held: “The itemization of expenses would seem to be as fruitful of good and as much likely to prevent oppression and injustice as any other requirement, and no doubt the purpose of the statute was to prevent oppression and overreaching by requiring fullest publicity.” The filing of a copy of a notice of sale is very useful to show that the sale was properly advertised to attract prospective bidders. We are left wholly without information what* the notice contained both as to form and substance. It is not known whether it was a notice which apprised the public of the nature of the property or of the conditions of the sale. The plaintiff was clearly'in default in these respects and thus deprived the mortgagor of the benefits of the provision of the statute. It is considered that the circuit court properly ruled that the failure of the mortgagee to comply with this statute operated to satisfy the debt and cancel the mortgage. By the Court. — The judgment appealed from is affirmed.