Mayr v. Reynolds

NOURSE, J.

This is an appeal by defendant R. H. Raphael from a judgment in favor of plaintiff establishing

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a first lien in plaintiff upon certain automobile material, and decreeing foreclosure thereof to satisfy' plaintiff’s claim.

The facts material to the opinion are that o.n the twenty-fifth day of July, 1916, the Merchants Finance Company, a corporation, loaned to the Beardsley Electric Company, a corporation, $1,926.45, evidenced by a promissory note in that amount secured by a pledge of the automobile material, which by agreement of the parties was deposited with the defendant R. H. Raphael Realty Company, a corporation; that on the twenty-fifth day of August, 1916, a month after this property had been so pledged and stored in premises leased by and under the possession of the Realty Company, the Beardsley Electric Company borrowed from plaintiff the sum of five thousand dollars, evidenced by its four promissory notes and secured by a pledge of the same material; that before this loan was made the plaintiff learned of the existing claim and lien of the Merchants Finance Company and demanded that the property be cleared either by payment of the existing loan or by release of the security. This he was assured had been done, and as evidence thereof a receipt in the words following was delivered to him by a representative of the Beardsley Electric Company upon his payment to that company of the sum of five thousand dollars : “Received of Walter A. Mayr $35.00, being one month’s rent of one-story brick building located at Eighth & Kohler streets. In addition to the rental for the use of this building, I agree to act as custodian for the electric vehicle material stored therein with respect to count and delivery of it, and I agree to honor only such orders as said Walter A. Mayr may issue to me as to the delivery of said material. R. H. Raphael Realty Co. By R. H. Raphael, Pres. ’ ’; that on the twentieth day of March, 1917, the Merchants Finance Company sold and assigned to the defendant Raphael as an individual the note of the Beardsley Electric Company which it held, together with its interest in the pledge of the security; that thereafter the Beardsley Electric Company became insolvent and the defendants Raphael and Raphael Realty Company, without notice to plaintiff or to any other person than certain individuals who were acting as agents and employees of these defendants, caused a pretended sale of said property to be made to an agent and employee of said Raphael for two thousand dollars,