Opinion
September 10, 1947. —
October 14, 1947.
APPEAL from an order of the circuit court for Milwaukee county: OTTO H. BREIDENBACH, Circuit Judge. Affirmed.
For the appellant the cause was submitted on the brief of William E. Burke of Milwaukee.
For the respondents there was a brief by Doll, Kinzer Hokanson of Milwaukee, and oral argument by R. A. Kinzer.
This is an appeal from an order denying a temporary injunction. In 1944 the defendants sold to the plaintiff their machine-shop business and took a chattel mortgage upon certain of the machinery to secure the payment of a part of the purchase price. Shortly following the execution of the mortgage the defendants executed an agreement which reads:
"For value received it is agreed that E.H. Wenzel or his assigns are authorized to sell and convey title to such machines as are listed in inventory and bill of sale heretofore made between said Wenzel and myself for the purpose of replacement with other machines subsequently purchased on which said machines so released shall be traded in or sold outright free of incumbrance."
Upon default in payments due to the defendants they instituted replevin proceedings for the machinery covered by the chattel mortgage and obtained a judgment for a return of the machinery or for its value of $1,500 in case a return could not be had. The judgment was affirmed in Meske v. Wenzel (1945), 247 Wis. 598, 20 N.W.2d 654.
None of the machinery was sold prior to the replevin judgment in the trial court, but subsequently and prior to the remittitur from this court the plaintiff sold practically all of it and replaced it with other machinery. Execution was issued on the replevin judgment and returned unsatisfied. The defendants thereupon instituted supplementary proceedings. Plaintiff, insisting that he was entitled to replace the original machinery at any time while it was in his possession and claiming that the defendants must accept the replacement machinery to the extent of its value in lieu of the original machinery in satisfaction of the replevin judgment, brought this action to require the defendants to accept such items of machinery in satisfaction of the judgment and to restrain enforcement of the judgment. Upon his complaint he applied for and was denied a temporary injunction restraining enforcement of the judgment during the pendency of the action. The appeal is from the order of denial.
The quoted agreement could have been intended either to, (1) release from the mortgage such of the original machinery as might be sold, or (2) release the machinery and subject the required replacements to the lien of the mortgage. If we assume most favorably to the appellant that the latter was intended and that the purpose was accomplished (cf. Chynoweth v. Tenney (1860), 10 Wis. *397), such a substitution of security was for the sole benefit of the respondents. When in the process of foreclosing their chattel mortgage the respondents obtained a judgment for the return of the original security or for its determined value of $1,500, their rights became fixed by the judgment. The rights of the appellant also became fixed. He no longer held the original machinery subject to the terms of the mortgage as modified by the agreement. He held it subject to the terms of the judgment. Instead of complying with the judgment and turning the property over to the respondents, he elected to dispose of it, and he thereupon became liable by the terms of the judgment for its value.
Execution upon a replevin judgment is for the delivery of specific property to the party entitled thereto and specifies the value of such property as determined by the judgment. If delivery cannot be had, the judgment is to be satisfied out of other property to the stated value as in the case of personal judgments. Sec. 272.05(6), Stats. So far as the replacement machinery can be applied in satisfaction of the personal judgment, in the absence of agreement of the parties, it must be by sale and application of proceeds as in the case of other money judgments.
The complaint stated no cause of action, and the court properly denied the temporary injunction.
By the Court. — Order affirmed.