Cudahy Packing Co. v. Mylan
Cudahy Packing Co. v. Mylan
Opinion of the Court
Defendants Mylan & Worthen operated a meat market in the city of Mitchell, and in July, 192.5, gave to Commercial Trust & Savings Bank a chattel mortgage on the equipment and tools used in the business, to secure an indebtedness on which there remained unpaid, at the time of the commencement of this action, approximately $1,000. The mortgage was not filed for record until September 22, 1926. On November 23, 19126, Mylan & Worthen made a bulk sale h> defendant Reihsen of their entire stock of merchandise and the equipment and tools described in the chattel mortgage, which mortgage Reihsen assumed. On December 4, 1926, the present action was commenced by plaintiffs to set aside the chattel mortgage, on the ground1 that they became creditors of Mylan & Worthen for goods sold to that firm during the period that the mortgage was withheld from record. From a judgment that the mortgage is void as to the claims of plaintiffs, and giving plaintiffs a lien on the mortgaged property for the amount of their respective claims, and from an order denying a new trial, defendants appeal.
The claims of Cudahy Packing- Company and Armour & Co. were both for goods sold during the time the mortgage was with
Exhibits 2, applying payments to the later items of the account, instead of to items of the account in the order of their dates, resulted in showing that, whereas, all items furnished prior to the filing of the chattel mortgage were paid for,-as shown by
Appellants assail that provision of the judgment giving to creditors whose claims accrued during the period that the mortgage was withheld from the record a lien on the mortgaged property to the extent of their claims, and insist that they can onty come in as general creditor and get a pro rata share of the purchase price of the stock of goods and equipment under the provisions of the Bulk Bales Law. This contention is unsound. The principle 'is recognized in the case of Hollenbeck v. Louden, 35 S. D. 320, 152 N. W. 116. Cudahy Packing Company and Armour & Co. are entitled to the liens granted to them, respectively, by the judgment of the trial court, but the claim of Swift & Co. is only entitled to share pro rata with other general creditors of Mylan & Worthen in the purchase price of the stock of merchandise and the property described in the mortgage to Commercial Trust & Savings Bank after pajunent of the liens thereon. The bank is entitled to a lien on the mortgaged property for the balance remaining due on its mortgage debt after deducting the Cudahy and Armour & Co.’s liens.
If anything remains after the satisfaction of all of these liens, Swift & Co. and other general creditors of Mylan & Worthen, if any, and the bank to the amount that its mortgage debt is held inferion to the claims of Cudahy Packing Company and Armour & Co., and not satisfied from the mortgaged property, will share such remainder pro rata, under the provisions of the Bulk Sales Law (Rev. Code 1919, §§ 914-921). Hollenback v. Louden, supra. The judgment and order appealed from are reversed, and the cause, remanded for further proceedings in harmony with this opinion.
Respondents Cudahy Packing Company and Armour & Co.
Reference
- Full Case Name
- CUDAHY PACKING CO. v. MYLAN
- Status
- Published