Weber Implement Co. v. Dunard

REYNOLDS, P. J. (after stating the facts). — • We have set out the evidence in this case offered and admitted, as far as we are able to determine that from the abstract. We are not very well satisfied, from an examination of the abstract, as to whether the learned trial judge admitted in evidence the chattel mortgage of date July 28, 1903, from Charles Dunard to Reeves & Company, the assignment of that to defendant, the note for $426, signed by Dunard and John Hechler, and the assignment of that to 'defendant. Whatever the fact is, or whatever the action of the court was as to these, the note and chattel mortgage and the assignments should have been admitted in evidence, and evidence received and considered which was offered tending to explain the discrepancy in the description of the engine as contained in the note and as contained in the chattel mortgage. The main thing about a chattel mortgage is the debt and if this note evidences the debt secured or intended to be secured by the chattel mortgage, the variance in the description of the engine as described in the note and in the chattel mortgage is immaterial. The only matter really to be determined in this case, it being an action commonly called replevin, or as our statute designates it for the claim and delivery of personal property, is the right of the plaintiff to possession, and the effectual and sufficient answer to that always is a su [496] perior right of possession in defendant, which being established determines the action. It was for the jury to determine the identity of the debt, and parol evidence is admissible to establish that. [Lawrence v. Tucker, 23 How. (U. S.) 14, l. c. 26; Rock v. Collins, 99 Wis. 630, 67 Am. St. Rep. 885; Woods v. Weemar, 104 U. S. 786, l. c. 793; Shirras v. Caig, 7 Cranch 34.] And it was for the jury to determine whether the debt secured by the chattel mortgage was an honest indebtedness and whether it had been paid. If any part of it was due and unpaid and defendant was the owner in good faith of the note and of the chattel mortgage, the plaintiff can not recover. All the- allegations in the answer, we may say, concerning the consideration for the chattel mortgage held by plaintiff and the question of failure of consideration for that as between plaintiff and Charles Dnnard, are utterly irrelevant and immaterial to this case. Nor is it necessary to pass on the question of es-toppel raised, although we observe in passing, that if the jury found from the evidence that plaintiff was present and participated in the sale through its agents, then the jury had a right to find that plaintiff is estopped to dispute whatever title was acquired by defendant at that sale. Insisting on a second sale, as plaintiff’s representatives did, looks very much as if their object in having a second sale was to interpose the levy under the writ between the unsuccessful bid and knocking off the engine to defendant. The point to be determined in this case, and the only one is, who was entitled to the possession of this engine at the time of the institution of this action, and that was a question, as shown by the facts in this case, for the determination of the jury. The fact that the defendant may have been a party to the notes which were secured by the chattel mortgage in favor of plaintiff has nothing whatever to do with the determination of this question, and the fact that- he may owe and be indebted on those notes has no significance whatever in determining the right of his possession of [497] this engine. It was error for the learned circuit court to have given the instruction and direction for a verdict in favor of plaintiff. In this view which we take of the case it is unnecessary to go into an examination of the instructions asked by the defendant, any further than to say, that as the facts were in evidence in this case, the fourth, fifth and sixth instructions, with slight verbal alterations, correctly stated the law as applicable to the facts, although all three of the instructions might have been embodied in one. The judgment of the circuit court of Lincoln county is reversed and the cause remanded. All concur.