Curtis v. Phillips

A chattel mortgage, given hy a merchant, of “goods in [his] store,” will not he held under those words to include a safe kept in his store, not for sale, hut for his own private use.

Case reserved at Saginaw Circuit. The action was replevin for an iron safe, and was tried by the Circuit Judge without a jury. Plaintiffs claimed the safe under a bill of sale from one J. B. Sloan, the execution of which was proved. It was admitted, on the trial, that about the 5th day of June, 1856, Charles W. Grant, sheriff of Saginaw County, at the request of one John F. Driggs, took the safe in question from the store of Sloan, at Bridgeport, with the entire stock of goods then in the store, by virtue of a chattel mortgage executed by Sloan to Driggs; that Grant, after giving five days’ notice, sold the goods, including the safe, at public auction, and that the safe was bid off by Driggs, and by him afterwards sold to the defendant in this suit; and that the defendant bought said safe of -Driggs with notice, at the time of his purchase, of the plaintiff’s claim thereto. The defendant then offered and read in evidence the chattel mortgage from Sloan to Driggs, its execution being admitted. The mortgage bears date February 11th, 1856, and was given to secure the payment of the sum of two thousand three hundred and forty dollars and eighty-three cents, and interest; and the description of property therein, which is claimed to include the safe, is as follows: “All of the goods of different kinds and varieties in the store of said first party, at Bridgeport Center, in the aforesaid town, except such as have been left with him to sell on commission.” The plaintiffs admitted that the mortgage was given to secure a bona fide indebtedness; that it was duly filed in the office of the township clerk; and that the safe was in the store at the time of the execution of the mortgage. It was also conceded that Sloan kept the safe for his own private use, and not for sale in his regular business; and that at the time of the date of the mortgage and bill of sale, Sloan was principally engaged in selling goods at Bridgeport Center, in said store. The only question submitted to the Court was, Whether the safe in dispute was conveyed by and included in the description of property, in the mortgage from Sloan to Driggs; if included, and conveyed by said mortgage, then the defendant to have judgment for the value of the property, with interest and costs; and if not, plaintiffs to. have judgment for nominal damages, with costs; whereupon the Court reserved the question for the opinion of this Court.