Nelson S. Button, Respondent, v. Rathbone, Sard & Co., Appellant

Nelson S. Button, Respondent, v. Rathbone, Sard & Co., Appellant. In an action for the alleged conversion of certain goods plaintiff claimed under a chattel mortgage from T., the former owner. Defendant took possession under a subsequent bill of sale from T., the stipulated purchase-price having, in pursuance of the contract of sale, been credited upon an indebtedness of T. Plaintiff’s mortgage had not, at .the time, been filed, and defendant had no knowledge or notice thereof. Defendant offered to prove that the mortgage was fraudulent, which, on objection, was excluded. IMd, error. (Argued December 2, 1889; decided December 20, 1889.) Appeal from judgment of the Supreme Court in the fifth judicial department, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the court. This action was brought to recover the value of certain personal property alleged to belong to plaintiff, and to have been converted by defendant. The property formerly belonged to one Tully. Plaintiff claimed title under a chattel mortgage executed by Tully. Defendant claimed under a subsequent bill of sale executed by Tully, under which it took possession of the property. The purchase-price it was agreed was to be and was credited on an indebtedness of Tully to defendant. Plaintiff’s mortgage was not then filed, and defendant had no knowledge or notice of it. On the trial defendant offered to show that the chattel mortgage was fraudulent and void, which was objected to and excluded. The majority of the court, while not concurring in the opinion, concur in the result upon the following ground: “ The defendant having acquired title to and possession of the chattel involved, without notice or knowledge of plaintiff’s unfiled chattel mortgage, was in a position to challenge its validity. The court erred in refusing to permit the defendant to show the mortgage was fraudulent, for which error the judgment should be reversed and a new trial granted.” G. L. Stedman for appellant. Horace McGuire for respondent. [MAJORITY — Potter, J.,] Potter, J., reads for reversal and new trial. All concur in result, except Bradley and Haight, J.J., not sitting. Judgment reversed.