
    J. H. McARTHUR and Another v. JEREMIAH MURPHY.
    October 26, 1898.
    Nos. 11,318—(76).
    Chattel Mortgage — Sale of Chattels — Action by Mortgagee against Purchaser — Complaint Good upon Demurrer.
    Where the mortgagor of chattels, without the knowledge or consent of the mortgagee, sells the mortgaged property, but the purchase money remains unpaid, the mortgagee may waive the tort, and sue the purchaser for the purchase money. Held, also, that the complaint in intervention states a cause of action.
    Action in the district court for Marshall county. The facts and the pleadings are described in the opinion. From an order, Ives, J., overruling the demurrer of the garnishee Brown to the complaint of the intervenors Meehan, the garnishee appealed.
    Affirmed.
    
      Greeley E. Oarr, for appellant.
    
      Henry W. Lee, for respondents.
   BUCK, J.

This action was commenced by the personal service of the summons and complaint upon the defendant Murphy, and a garnishee summons was at the same time served upon Brown, and a copy of the same and notice served upon Murphy. At the time of the disclosure by the garnishee the Meehans, intervenors, appeared, and asked permission to be made intervening parties, and to be allowed to serve a complaint. This request was granted and the complaint was served, to which Brown demurred on the ground that it failed to state facts sufficient to constitute a cause of action against Brown, the garnishee. The demurrer was overruled, and from it Brown appeals.

The intervenors were partners in business, and in 1895 they sold lumber to Murphy, and for a balance due thereon of $65.19 they took back from Murphy a note, secured by a chattel mortgage upon twenty-five pigs, six months old, of the white Yorkshire breed, and other property. This property was then in the possession of the mortgagors, and the mortgage was duly filed, but never paid. On or about October 3, 1897, Murphy sold and delivered to the garnishee, Brown, at the agreed price of $90, thirteen of said pigs, without the knowledge or consent of the mortgagees, Brown at that time being the agent of the plaintiffs herein. Before and at the time of the delivery of the pigs to Brown, Murphy told him that the pigs were mortgaged to the Meehans, and Brown refused to pay for them. On October 14, 1897, the Meehans exhibited to Brown a certified copy of the chattel mortgage, and then and there demanded of him the said pigs, which Brown refused to deliver. It is further alleged in the complaint, and admitted by the demurrer, that by collusion with plaintiffs he caused himself to be garnished, so as to deprive these intervenors of their rights in said pigs. The intervenors demanded judgment against Murphy and Thomas Brown for the sum of $65.19, with interest thereon from January 28, 1897.

This complaint states a cause of action. It was competent for the intervenors to waive the tort, and sue for the value upon an implied contract. Downs v. Finnegan, 58 Minn. 112, 59 N. W. 981; Maxwell, Code Pl. 36. The note became due November 1, 1897, and there was a default in the conditions of the mortgage. The complaint in intervention was not made until November 13, 1897. The intervenors were then entitled to foreclose the mortgage by action, as well as recover the value of the mortgage. As the intervenors were brought into the action by order of the court, and intervened after the note and chattel mortgage were due, and default made in its conditions, and the proceeds of the sale of the pigs paid into court, we do not think that any demand was necessary before the intervening complaint was filed.

Order affirmed.  