Perkins v. Maier & Zobelein Brewery

COOPER, C.

Appeal from judgment in favor of defendant and from order denying motion for a new trial.

This action was brought by plaintiff, as assignee of the insolvent estate of Charles Bauer, who was adjudged insolvent under the Insolvent Act of March 26, 1895, for the purpose of recovering damages for the alleged wrongful conversion by defendant of certain counters, mirrors, desk, electric fixtures, kitchen utensils, and other articles of personal property, which had been used by and formerly were the property of the insolvent Bauer. Bauer had the property in a certain saloon and restaurant known as “ The Anheuser,” on Spring Street, in the city of Los Angeles. While he was the owner and in possession of the property, and before any question was raised as to his solvency, on the thirteenth day of October, 1897, he borrowed four thousand five hundred dollars of defendant, and executed a chattel mortgage upon all the property described in the complaint, to secure the said loan.

This mortgage was properly verified, and recorded on the day of its execution. It was given to secure a note of five hundred dollars due thirty days after date (October 13, 1897), and four notes of one thousand dollars each, due in six,

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twelve, eighteen, and twenty-four months, respectively. The mortgage contained an express provision, that

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if the mortgagor shall fail to make any payment as in the said promissory notes provided, the mortgagee may take possession of the said property, using all necessary force so to do, and may immediately proceed to sell the same in the manner provided by law, and from the proceeds pay the whole amount in said notes specified.” On December 31, 1897, the first note not having been paid, and no interest having been paid, defendant, to secure itself and to collect the money due it, took possession of said property, under the terms of said mortgage, and had it sold under foreclosure proceedings. Defendant became the purchaser at the foreclosure sale.

On January 6, 1897, the creditors of Bauer filed a petition to have him adjudged insolvent, and, after due notice given, an order was made adjudging him insolvent and appointing plaintiff assignee.