
    S ULMER SONS CO v SCHULMAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 12053.
    Decided March 9, 1932
    
      Ulmer, Berne and Gordon, Cleveland, for plaintiff.
    J. W. Moss, Cleveland, for defendant Schulman.
    Max P. Goodman, Cleveland, for defendant Maclctaz.
    MAUCK, PJ, MIDDLETON and BLOSSER, JJ, (4th Dist), sitting.
   MIDDLETON, J.

This is an equity proceeding for an injunction and is here on appeal from the Court of Common Pleas. It involves the right to certain personal property claimed under a chattel mortgage. The record is long. The evidence is very unsatisfactory. The probative value of the evidence in respect to ultimate facts is not effective.

After considering the testimony of the witnesses we are inclined to the conclusion that title to the mortgaged property was never surrendered by the defendant Schulman and that the possession of that property by the mortgagee was a conditional one. We are unable to reconcile the evidence with the contention of the plaintiff that the defendant fully surrendered the property and abandoned all claim to it. It can not be said that the mortgagee took the property under the terms of the mortgage for those terms provide that if taken it shall be sold at once by the mortgagee and the evidence clearly shows that the mortgagee made no sale of the property until nearly three years after the alleged surrender by the mortgagor. We are unable to find any proof in the evidence of any agreement between the parties as to any consideration for the voluntary surrender of the property or of any understanding as to what its value should be and what credit, if any, should be given to the mortgagor on his indebtedness under the mortgage. By reason of this situation we are forced to the conclusion that the mortgagee had no lien on the property after the expiration of the time fixed in the chattel mortgage.

The petition is therefore dismissed.

MAUOK, PJ, and BLOSSER, J, concur.  