
    Burr, Respondent, vs. Dana, Appellant.
    
      September 24
    
    
      December 4, 1888.
    
    Chattel Mortgages. (1, 2) Mortgagee in possession of stoch of goods: Sales and additions. (3) Redemption: Accounting: Interest.
    
    1. Where .a mortgagee of a stock of goods took possession thereof and continued the business, making sales and replenishing the stock from time to time by the purchase of new goods, such additions became, in equity and as between the parties, part and parcel of the mortgaged stock, to be treated and accounted for as such.
    
      2. The mortgagee in such a case having, besides new goods, purchased another stock of goods and commingled them with the mortgaged stock and made sales therefrom without keeping any separate account of the amount of such sales, it is held that such additional stock should, like the new goods, be treated as a part of the mortgaged stock.
    3. In an accounting between the parties in such a case the mortgagee should be credited with the amount of the mortgage debt, with the cost of the goods added to the stock, and with the expenses of carrying on the business, and should be charged with the sums received from the sales of goods, whether out of the original stock or the additions thereto. He should be credited also with interest on the debt, and be charged witli interest, from some average or equated time, on the amount which the net receipts from the business reduced the debt. Any amount received by the mortgagor from the proceeds of sales of the mortgaged property need not be included in the accounting.
    APPEAL from the Circuit Court for Fond du Lao County.
    Peplevin for a stock of boots and shoes in a certain store in the city of Kipon, alleged in the complaint to have been unlawfully taken by the defendant from the plaintiff on July 1, 18SG, and unjustly detained by him. The action was commenced July 2, 1886. The answer of the defendant is (1) a general denial; and (2) a counterclaim, in which, it is alleged that on February 24,1886, the defendant and his partner, one Shaw, then engaged in the boot and shoe business at Kipon, borrowed of plaintiff $2,000, under an agreement to pay him $2,300 on May 1st following. To secure such payment the defendant and Shaw executed a bill of sale of their stock of goods to plaintiff; and thereupon plaintiff executed to Shaw, for the benefit of the firm of Dana & Shaw, a certain agreement annexed to and made part of the answer, in and by which the plaintiff retained full possession and control of the goods, but authorized Shaw to sell the same at retail, at prices not less than seventy-five per cent, of invoice or cost prices; Shaw to account to plaintiff for daily sales, and pay over to him proceeds of sales, or return him boots and shoes of equal value until the said $2,300 .should be paid, at which time the balance of goods remaining unsold was to be returned to Shaw. Tailing to pay the $2,300 by May 1,1886, Shaw was to return to plaintiff all stock unsold at that date, and an amount of money equal to seventy-five per cent, invoice or cost price of those sold.
    It is further alleged in such counterclaim that such agreement Avas simply a defeasance, executed pursuant to the original contract between the parties, which Avas that if defendant and Shatv should pay the $2,300 to plaintiff by May 1, 1886, the bill of sale of the stock executed by them to the plaintiff should be void. Also that defendant has purchased Shatv’s interest in the stock; that plaintiff had received, on or before June 30,1886, in cash, $2,055 on such loan; that on that day defendant tendered him $680 for any balance which might remain due on the loan, Avhich plaintiff refused to accept; and that plaintiff was in possession of said stock of goods from .February 24, 18S6, until the defendant took possession thereof, June 30, 1S86. The prayer of the counterclaim is, in effect, that the bill of sale and agreement be adjudged to constitute a mortgage on the stock of goods in question; that an account be stated of the sum received by plaintiff thereon; and that, on payment of any balance found due plaintiff, the defendant be adjudged the owner of the goods claimed by plaintiff in this action.
    The plaintiff replied to the counterclaim, denying that the bill of sale is a mortgage for an alleged loan, and claiming that it evidences an absolute and unconditional purchase of the stock by him.
    The issue was first tried as to whether the transactions amounted to an absolute sale of the stock of goods, or only a mortgage thereon to secure a loan of money, and Avas found for the defendant. That is to say, the court found that the plaintiff was mortgagee of the stock, and not absolute owner thereof.
    Thereupon the case was referred to J. W. Iliner, Esq., to take proofs and state two accounts of payments on the loan. This involved taking accounts of moneys received by plaintiff for goods sold, and paid out by him in the purchase of new goods and for expenses. One of these accounts was to cover the time from February 24 to July 2,1886, when this action was commenced; the other, to cover the time from the commencement of the action to the date of the referee’s report, August 1,1S87. The referee stated such accounts; and under date of August 1, 1887, reported that there was due plaintiff, July 1, 1886, $2,284.86, and on August 1, 1887, $1,690. The report is very full, including numerous details, many of which are not important in the determination of this appeal. The material portions are stated in the opinion.
    The court confirmed the report of the referee, denying a motion of the defendant to modify the same. Judgment was duty entered for the plaintiff that he is lawfully entitled to the possession of the goods in controversy, and assessing the value of his interest therein at $1,690. On the counterclaim it was adjudged that defendant is entitled to redeem the goods on payment to the plaintiff of $1,690, and interest from August 1, 18S7. The judgment gives the defendant ninety days in which to redeem, and if he fail to do so it forecloses him of any right to or claim upon the goods in question. The defendant, appeals from the judgment.
    For the appellant there was a brief by Hicks & Phillips, and oral argument by E. R. Hicks.
    
    They contended, inter alia, that the evidence in the case is so incomplete and self-contradictory that no just and true account can be stated from it. The only equitable method of settlement is to charge the plaintiff with the goods, credit him with the loan, and strike the balance. This is an equitable adjustment, because the plaintiff wrongfully converted the goods at the first, contrary to the agreement that the mortgagor should remain in possession, and afterwards claimed to be absolute owner. It is impossible to identify the original Dana goods which are now on hand. Even conceding that the plaintiff was a mortgagee rightfully in possession, if he mixed the property with his own so that it cannot be distinguished, he must suffer all the loss and inconvenience of such confusion, and if its condition is so changed that it cannot be restored, he must pay the value at the time it was taken. This is the universal rule where a person in. a fiduciary capacity mingles assets beyond identification. Mowry v. White, 21 Wis. 422; Root v. Bonnema, 22 id. 539, 543; llowry v. First Nat. Bank, 54 id. 38, 46.
    For the respondent there was a brief by Waring, Eichstaedt & Niskern, and oral argument by G. D. Waring.
    
   The following opinion was filed October 9, 1888:

Lyon, J.

The circuit court adjudged the plaintiff a mortgagee of the goods in controversy. This is favorable to the defendant, and the judgment in this behalf is not-reviewable on this appeal. Such review can only be had on an appeal by the plaintiff. He seems to be content with the judgment as it stands.

The allegations of the answer and the proofs show satisfactorily that the parties contemplated that the plaintiff should take immediate possession of the stock of goods and continue the business, and from time to time replenish the stock by purchases of other goods. In so doing the plaintiff was not a wrong-doer, but his possession of the stock, and the manner in which he dealt with it, was authorized by the contract, and hence not wrongful or unlawful. As between the parties, these additions to the stock became, in equity, part and parcel of the mortgaged property, to be treated and accounted for as such. After this action was commenced, the stock was redelivered to the plaintiff, who continued the business as before until February 23, 1887. He then ceased making sales, boxed the unsold goods, and still retains them in his possession.

The principles upon which the accounting between the parties in respect to the mortgaged stock should be had seem to us very plain. The plaintiff should be credited with $2,300 as of May 1, 1886; also with the cost of all goods added to the stock, and expenses paid b}r him in carrying on the business. He should be charged with the sums he received from the sales of goods, whether out of the original stock or the additions made thereto. After a pro per adjustment of interest on the loan and on payments, the balance between the amounts so credited and so charged to him will be the amount still unpaid on the loan. The items necessary to the statement of the account on that basis are furnished in the report of the referee. This report has passed successfully the scrutiny of the learned circuit judge, and seems to be well sustained by the evidence. As a matter of course, absolute certainty in stating such an account is unattainable, but we are satisfied that the respective amounts reported by the referee approximate accuracy as nearly as practicable.

Interest should be allowed the plaintiff on $2,300 from May 1, 1886; and the defendant should be allowed interest on the amount which the not receipts of the store reduced the debt, July 1,1886, and August 1,1887, from some average or equated time. Thus the payments which made such reduction before July 1, 1886, run through four months, commencing February 24th. Hence interest thereon should be computed from Majr 1, 1886. On the same principle the defendant should be allowed interest on the net reduction of payments made between July 1, 1886, and February 23, 1887 — about eight months. Interest on the amount of that reduction should commence, therefore, about November 1, 1886.

The referee reported that the plaintiff added new-goods to the stock, previous to July 1, 1886, which cost $372.16; that the-expenses of the business to that date paid by him were $619.10; and that his "total receipts from the store to that date were $1,705.56. He further reported that the plaintiff paid for new goods put- in-the stock between July 1, 1886, and February 23,1887 (when sales ceased), $921,63; that the expenses of the business during the same time were $1,128.95; and that the total receipts from the store during the same period were $2,760.51.

In addition to the new goods above mentioned, the plaintiff purchased a stock of goods in Waupun, in March, 1886, for which he paid $554.55. He put this stock in the store, commingling it with the other goods there, and sold from the same without keeping any separate account of the amount of such sales. He treated it in all respects as a portion of the mortgaged stock, and, for reasons already given, we think properly so. The report of the referee contains findings in respect to this stock of goods; but, in the computations to ascertain the state of the accounts between the parties, the Waupun stock, and the proceeds thereof, seem to have dropped out of the case. The judgment does not treat it as a portion of the mortgaged stock subject to redemption, but only adjudges to the defendant, in case he redeems, what remains of the original Dana & Shaw stock, and of the new goods purchased with the proceeds thereof. In this respect it is erroneous. The judgment should provide that, in case of redemption, the defendant should be entitled to the goods of the Waupun stock which remain unsold. The value of these was found by the referee to be $578.98. It also results from this view that the plaintiff should be credited with the amount he paid for such stock, which was $554.55.

Stated upon the foregoing principles, tlie account will stand as follows:

Account to July 1,1886.
Plaintiff, Cr.
Loan to Dana & Shaw. $3,300 00
Interest, May 1 to July 1, 1886. 26 83
Paid for Waupun stock. 554 55
“ “ new goods.■.... 372 16
“ “ expenses. 619 10
$3,872 64
L'r.
Receipts from store... $1,705 66
Int. from May 1, on $132.92, 2 mos. 1 56
-$1,707 12
Due on mortgage debt, July 1, 1886..$2,165 52
Account to August 1, 1887.
Or.
Due July 1, as above. $3,165 52
Interest from that date to August 1, 1887 164 22
Paid for new goods, after July 1, 1886.... 921 63
“ “ expenses “ “ “ “ ... 1,128 95
$4,380 32
L'r.
Receipts from store after July 1, 1886.$3,760 51
Int. from November 1, 1886, on $545.71, to August
1, 1887 . 28 68
- $3,789 17
Due plaintiff, August 1, 1887. $1,591 15
Add interest from that date to the date of redemption.

This is nearly $100 less than the sum found due the plaintiff by the referee and the circuit court.

Because the judgment requires the defendant to pay more than the amount due the plaintiff to redeem the property, and because it fails to include what remains unsold of the Waupun stock, it must be reversed.

By ihfi Court.— Judgment reversed, and cause remanded .with directions to the circuit court to render the judgment indicated in the foregoing opinion.

The plaintiff moved for a rehearing. The following opinion was filed December 4, 1888:

Lyon, J.

The plaintiff moves for a rehearing on the grounds (1) that in the account stated between the parties by this court, an item of $103.20, found by the referee to have been received by the defendant from the receipts of the store, was omitted from the accounting; and (2) that inasmuch as the question whether the "Wanpun stock became a portion of the mortgaged goods was first raised in this court, no costs should be allowed the defendant on a reversal of the judgment solely because that stock was not therein adjudged to be covered by the mortgage.

1. The item of $103.20 was properly omitted from the accounting. The amount did not come from the pocket of the plaintiff, but was received by the defendant from the proceeds of the mortgaged property. That is, it came out of the plaintiff’s security, and reduced the same just that amount. If the defendant redeems the mortgaged goods, the value of the goods which will then be returned to him will be that amount less than the same would have been had he not sold $103.20 worth of the goods and kept the money. If the defendant does not redeem, and the plaintiff forecloses his mortgage by a sale of the mortgaged goods, should the proceeds fall short of paying the mortgage debt, the deficiency would be increased the same amount, and it would be included in his recovery in an action for such deficiency. Hence, this item does not figure in this action of replevin, and counterclaim to redeem, and was properly omitted from the accounting.

2. It may bo true, as counsel for plaintiff contends, that there are no specific exceptions to the omission of the circuit court to include the "Waupun stock in the mortgaged goods, but there are exceptions to the failure of the circuit court to find that this stock and its proceeds had been so commingled by the plaintiff with the Dana stock and, its proceeds (which both parties seem to have conceded was the only stock covered by the mortgage) that the latter stock could not be separated from the Waupun stock for the purposes of an accounting. Upon this commingling of the two stocks, counsel for the defendant mainly rested their contention, in their argument of the appeal, that the basis upon which the account should be stated is to charge the plaintiff with the value of the mortgaged goods which came to his possession, and credit him with the loan. A settlement upon this basis would be more favorable to the defendant than is the account stated by this court. So we were thus called upon to determine whether there had been any commingling of good's as claimed, and we resolved the question in the negative, because, equitably, the Waupun stock was also included in the mortgage. Having so found on proper exception, our judgment necessarily disposed of that stock. !

Por the reasons above suggested, we conclude that the case was correctly decided in the first instance. The defendant is the prevailing party on the appeal, and is entitled to costs under the statute. Sec. 2949, R. S.

By the Oourt.— The motion for a rehearing is denied with ¡¡¡>25 costs.  