
    Ullman, Appellant, vs. Austin, Respondent.
    
      January 17
    
    February 10, 1920.
    
    
      Chattel mortgages: Bankruptcy of mortgagor: Assertion of claim against trustee: Action against third party for conversion.
    
    An effort to recover from a trustee in bankruptcy certain brick for which plaintiff held.a bill of sale, in effect a chattel mortgage, executed by the bankrupt, was not an election inconsistent with his right to sue defendant for converting other ' brick, also covered by the mortgage, prior to the'bankruptcy proceedings. ■ ...
    Appeal from a judgment of the circuit court for Milwaukee county: Byron B.' Park, Judge.'
    
      Affirmed.
    
    
      Conversion. On January 15, 1916, the American Wrecking & Salvage Company gave to the plaintiff a bill of sale, in ■ effect a chattel mortgage, upon 600,000 clean brick, ■ then piled in the yards of the salvage company in what is known as the Eighth-street yard. On January 19, 1916, the salvage company executed to the defendant a bill of sale of 800,000 clean brick located in the yard between Fifth and Sixth streets, and also in the Eighth-street yard. On June 5, 1916, the salvage company was adjudged bankrupt and the trustee took possession 'of all its property. Proceedings were had in the bankruptcy court, and thereafter this action was begun against the defendant upon the theory that the defendant had converted the property covered by the bill of sale given by the salvage company to the plaintiff.
    The jury found that on the 14th day of January, 1916, at the time of the execution of the bill of sale to the plaintiff/there were in the Eighth-street yard 300,000 clean brick; that the defendant took out of the Eighth-street yard 50,000 of the brick covered by the bill of sale to the plaintiff. The plaintiff moved the court to change the answer to the first question from “300,000” to “700,000,” and for judgment on the verdict as so changed. The defendant moved to be allowed to amend his answer so as to set up by way of defense that the plaintiff had elected to rely upon his claim of ownership made by him in the bankruptcy proceedings, moved to change the answer to the second question from “50,000” to “Nothing,” and for judgment in his favor. The trial court held that the proceedings in the bankruptcy court in no way affected the rights of the parties in. this action, that the finding of the jury as to the number of brick in the Eighth-street yard covered by the bill of sale to ■ the plaintiff was correct, and that the finding of the jury that the defendant had removed 50,000 of said brick from the yard was supported by the testimony, and gave the plaintiff judgment for 50,000 brick at $4 per thousand, with interest.
    
      From the judgment plaintiff appeals, and the defendant served notice for a reversal under sec. 3049a, Stats.
    For the appellant there was a brief by Curtis & Mock of Milwaukee, and oral argument by H. K. Curtis.
    
    For the respondent there was a brief by Clarke & Don-nelly, attorneys, and John A. McCormick, counsel, all of Milwaukee, and oral argument by Mr. McCormick.
    
   Rosenberry, J.

The main contention made by the plaintiff is that under the cases of Dexter v. Cole, 6 Wis. 320; Cernahan v. Chrisler, 107 Wis. 645, 83 N. W. 778; Lucas v. Sheridan, 124 Wis. 567, 102 N. W. 1077, and Taylor v. Tigerton L. Co. 134 Wis. 24, 114 N. W. 122, the defendant was guilty of conversion. It appears that the defendant sold some brick from the Eighth-street yard, and that he made some claim of title under his bill of sale to the brick located in the yard. The amount removed was found by the jury to be 50,000. There is no evidence to sustain the claim that the defendant wrongfully exercised any control over the brick, except those removed from the yard, which amounted to conversion thereof. No useful purpose would be served by a rediscussion of the law relating to the conversion of personal property, as it has been fully discussed in the cases cited.

The effort of the plaintiff to recover part of the brick from the trustee in bankruptcy cannot affect his right to recover against the defendant for the amount of brick removed by the defendant prior to the bankruptcy proceed-' ings. Therefore defendant’s motion based upon the theory that the plaintiff had made an election inconsistent with his claim in this case, so far, at least, as the recovery here is concerned, can have no effect, as it appears that the defendant removed the brick for which he is held liable prior to the bankruptcy proceedings.

By the Court. — Judgment affirmed.  