Chickering-Chase Bros. v. White

106 N.W. 797, 127 Wis. 83, 1906 Wisc. LEXIS 164

Opinion

WiNsnow, J.

This is a contest for the possession of a piano between a chattel mortgagee upon the one side and a firm claiming a subsequent boarding-house keeper’s lien upon the other side. The trial court held that the boarding-house keeper’s lien was paramount, and the chattel mortgagee seeks to reverse the judgment upon this appeal. In the trial court the validity of the alleged chattel mortgage was attacked on two grounds: (1) because the plaintiff was a foreign corporation and had not at the time of the execution of the mortgage filed with the secretary of state a copy of its articles of incorporation; (2) because the affidavit of renewal was insufficient upon its face.

As to the first of these contentions we are entirely satisfied that it is untenable. Sec. 17706, Stats. 1898, provides that no foreign corporation (with certain exceptions) shall transact business, hold or dispose of property in this state until it shall have filed an authenticated copy of its articles in the office of the secretary of state, and that every contract made by such corporation affecting its personal liability or relating to property within this state-before complying with the pro visions of the statute shall be void on its behalf and on behalf of its assigns. The mortgage in question was admittedly made before the section had been complied with, but the difficulty is that it does not appear that the mortgage was made within this state. Eor all that appears on its face or in the evidence it may have been executed in Chicago, and there is no proof that the plaintiff has ever transacted any business of any nature in this state prior to the time when it filed its articles. The section does not render void a contract made or a lien acquired upon property outside of the state by a -corporation not transacting business within the state at that time. As this is strictly defensive matter, all the facts necessary to bring the case within the statute must be proven or .the defense will fail.

As to the second contention made by the defendants, the trial court correctly held that the affidavit of renewal was insufficient. Sec. 2315, Stats. 1898, provides that a chattel mortgage shall cease to be valid as against the creditors of the mortgagor, or subsequent purchasers or mortgagees in good faith after the expiration of two years from its filing, unless within thirty days prior to the expiration of the two years the mortgagee, his agent or attorney, “shall make and file an affidavit setting forth the mortgagee’s interest in the property.” The affidavit in the present case was made by one Osgood, who is therein described as “of and for the corporation of Chickering-Chase Bros. Co." but the affiant nowhere in the affidavit states under oath that he is the agent or attorney of the corporation. This is fatal. The fact of the agency must be sworn to by the affiant; a mere recital is not a part of the affidavit and is insufficient. Hill v. Hoover, 5 Wis. 354; Miller v. C., M. & St. P. R. Co. 58 Wis. 310, 17 N. W. 130, and cases cited. Nor could parol evidence of the fact cure the defect. Iverslie v. Spaulding, 32 Wis. 394. But, notwithstanding the insufficiency of the affidavit of renewal, the mortgage remained valid as between the parties and as against all persons save creditors of tbe mortgagor and subsequent purchasers or mortgagees in good faith, and the question whether the defendants White had a valid lien as boardinghouse keepers upon the property superior to the plaintiff’s lien is yet to be determined.

'Our statute provides.that every innkeeper and boardinghouse keeper shall have a lien upon and retain possession of the baggage and effects of any guest or hoarder for the amount which may be due him for board from such guest or hoa/rder until such amount is paid. See. 3344, Stats. 1898. The court found that there was such a lien in this case which was superior to the plaintiff’s right, if any, and hence dismissed the bill. The findings of fact on which the conclusion was based were, in brief: That Mrs. Greene was a married woman living with her husband and owned the piano in dispute; that on April 9,1903, she became a boarder at the White boarding house, and remained such boarder with intervals of absence until June 6, 1904, and agreed that she would pay for her board $6 per week up to March 28, 1904, and thereafter $7 per week, and charge her separate estate therewith (there being no finding that she had any separate estate or property other than the piano, nor any separate business) ; that on the . 6th of June, 1904, there was due from her to the defendants White for such board $278.90, which has not been paid; that she brought the piano to the boarding house on April 9, 1903, and that it remained there continuously up to the present time. Exception was duly taken to the findings because the court did not find that Mr. and Mrs. Greene both went to board with the defendants under an agreement between the defendants and Mr. Greene, and exception was also taken to the ninth finding, by which it was found that Mrs. Greene contracted to pay for her own board and agreed that she would charge her separate estate therewith. If these findings are to be construed as meaning that Mrs. Greene, at or near the time when she commenced to board with the defendants, made any agreement to pay tbe Whites therefor or that she would charge her separate estate with her board, they are absolutely unsupported by a shred of evidence. On the contrary, the undisputed evidence, given by the defendant L. J.. 'White, is that Mr. and Mrs. Greene came to the house together; that he had an agreement with them when they first came to charge them $12 per weet; that the charges upon the books were made against “Charles T. Greene and wife;” that he frequently asked Mr. Greene for payments, and Mr. Greene made numerous promises to pay, and finally gave an order on a third person which was not paid; that he never spoke to Mrs. Greene about the matter until some time in March, 1904, when he told her he could not keep them any longer unless the bill was paid, at which she was surprised,, and said that if he would let them stay she had some money of her own and would pay him every cent out of her own: money, to which he replied that if she would pay the bill he would let the matter rest; that he had talks with both Mr. and Mrs. Greene about the bill, and they both told him “There was no need to worry, there is plenty of stuff here to secure you, the library, piano, and pianola,” but they never said he could hold the piano or' anything else if they did not pay, though he expected to do so. Mrs. Greene was not sworn upon the trial and the foregoing facts were testified to by Mr. L. J. White, the managing partner of defendants’ firm, and are absolutely uncontradicted and must be considered as the exact facts of the case upon the points which they, cover. The answer set up simply a boarding-house keeper’s lien resulting-from the. alleged fact that Mrs. Greene came to the hoarding house with the piano April 9, 1903, and engaged board and remained there as a hoarder for the periods named in the-findings, and became indebted therefor in the sum of $278.90. Nothing is said in the answer about any agreement to charge-her separate property with her board. It seems apparent that the findings must have, been drawn by the defendants’ attor neys to meet the supposed exigencies of tbe case, and it bardly seems that they could have been examined by the trial judge with his usual care before signing. Attention is called to the remarks upon this subject contained in the case of E. M. Fish Co. v. Young, post, p. 149, 106 N. W. 795.

Considering the case upon the actual state of facts proven rather than upon the findings, there are several questions presented. The sole defense pleaded was that the defendants were entitled to hold the piano by virtue of a boarding-house keeper’s lien thereon, and this was the defense found and adjudged by the court. In order that such a lien may exist under the statute (sec. 3344, suprts), there must be a debt for board due from the boarder to the boarding-house keeper, and the initial question is whether the evidence here showed any debt at law due from Mrs. 'Greene to the defendants. Mrs. ■Greene was a married woman living with her husband, and when she and her husband came to the boarding house together and engaged board it is very plain that the contract thereby made was her husband’s contract, and the debt incurred under it was her husband’s debt and not hers. She could bind herself at law for no debts except debts necessary or convenient to the beneficial enjoyment of her separate property or the •carrying out of her separate business or in relation to her personal services. Stack v. Padden, 111 Wis. 42, 86 N. W. 568. A contract to pay for her board while living with her husband and engaged in no business is not included within the exception. This principle applies as well to the supposed arrangement made with the wife alone in March, 1904, as to the original contract alleged to have been made with both husband and wife in April, 1903. The indebtedness for the wife’s board was at all times, therefore, the husband’s debt and not the wife’s, hence the lien could not attach to her separate property which she herself brought to the boarding house, because there was nothing due to the boarding-house keeper from her for board, and such property is not liable for her husband’s debts.

But it is further argued that she might legally charge her separate property with a lieu to secure payment of the board bill, and that she did so in the present instance. There are at least two sufficient answers to this contention: (1) Mr. White admits that she never pledged the piano for her board, or said that it might be held until the board was paid; (2) even should it be held that such a pledge was made and the property thus charged in equity with the payment of the debt, a boarding-house keeper’s lien under the statute would not thereby be created, but at best an equitable lien or charge which would necessarily have to be declared and enforced by-proper action in a court of equity, or at least by an equitable counterclaim in this action, and no such action has been brought or counterclaim made.

The conclusions reached necessarily call for reversal of the-judgment.

By the Court. — Judgment reversed, and action remanded' with directions to render the proper judgment in replevin for-the plaintiff.