Burr vs. Dana. It appears from the return, and is conceded in the relation and by the demurrer, that the bridge in question was located at the foot of the rapids; that a bridge at that point is in danger annually of being swept away by ice gorges; that it was swept away in 1877, and again in April, 1888; that in 1877 the county rebuilt the bridge in part at a cost of $8,000 for the superstructure, that it would cost to rebuild the bridge, with new stone piers and abutments and iron superstructure, some $25,000; that the cost of repairing the bridge, using the portions not destroyed, would be at least $7,000, and probably much more; that, if the bridge should be thus repaired, it would probably last but a few years at most; that a suitable bridge can be built with much more safety and much more durability at a point further up the river on section 8. Assuming, therefore, that the duty of maintaining a bridge at the point in question, or on section 8, rests upon the county, still the county board should not be compelled by mandamus to build the same, in the absence of the necessary means for paying the expenses thereof, or of the authority for procuring such means, which, as we have seen, does not now exist. By the Court.- The demurrer to the return is overruled, and the relation is dismissed. BURR, Respondent, vs. DANA, Appellant. September 24 - December 4, 1888. CHATTEL MORTGAGES. (1, 2) Mortgagee in possession of stock of goods: Sales and additions. (3) Redemption: Accounting: Interest. 1. Where a mortgagee of a stock of goods took possession thereof and continued the business, making sales and replenishing the stock from time to time by the purchase of new goods, such additions became, in equity and as between the parties, part and parcel of the mortgaged stock, to be treated and accounted for as such. Burr vs. Dana. 2. The mortgagee in such a case having, besides new goods, purchased another stock of goods and commingled them with the mortgaged stock and made sales therefrom without keeping any separate account of the amount of such sales, it is held that such additional stock should, like the new goods, be treated as a part of the mortgaged stock. 8. In an accounting between the parties in such a case the mortgagee should be credited with the amount of the mortgage debt, with the cost of the goods added to the stock, and with the expenses of carrying on the business, and should be charged with the sums received from the sales of goods, whether out of the original stock or the additions thereto. He should be credited also with interest on the debt, and be charged with interest, from some average or equated time, on the amount which the net receipts from the business reduced the debt. Any amount received by the mortgagor from the proceeds of sales of the mortgaged property need not be included in the accounting. APPEAL from the Circuit Court for Fond du Lac County. Replevin for a stock of boots and shoes in a certain store in the city of Ripon, alleged in the complaint to have been unlawfully taken by the defendant from the plaintiff on July 1, 1883, and unjustly detained by him. The action was commenced July 2, 1886. The answer of the defendant is (1) a general denial; and (2) a counterclaim, in which it is alleged that on February 24, 1886, the defendant and his partner, one Shaw, then engaged in the boot and shoe business at Ripon, borrowed of plaintiff $2,000, under an agree ment to pay him $2,300 on May 1st following. To secure such payment the defendant and Shaw executed a bill of sale of their stock of goods to plaintiff; and thereupon plaintiff executed to Shaw, for the benefit of the firm of Dana & Shaw, a certain agreement annexed to and made part of the answer, in and by which the plaintiff retained full possession and control of the goods, but authorized Shaw to sell the same at retail, at prices not less than serenty-five per cent. of invoice or cost prices; Shaw to account to plaintiff for daily sales, and pay over to him Burr vs. Dana. proceeds of sales, or return him boots and shoes of equal value until the said $2,300 should be paid, at which time the balance of goods remaining unsold was to be returned to Shaw. Failing to pay the $2,300 by May 1, 1886, Shaw was to return to plaintiff all stock unsold at that date, and an amount of money equal to seventy-five per cent. invoice or cost price of those sold. It is further alleged in such counterclaim that such agreement was simply a defeasance, executed pursuant to the original contract between the parties, which was that if defendant and Shaw should pay the $2,300 to plaintiff by May 1, 1886, the bill of sale of the stock executed by them to the plaintiff should be void. Also that defendant has purchased Shaw's interest in the stock; that plaintiff had received, on or before June 30, 1886, in cash, $2,055 on such loan; that on that day defendant tendered him $680 for any balance which might remain due on the loan, which plaintiff refused to accept; and that plaintiff was in possession of said stock of goods from February 24, 1886,, until the defendant took possession thereof, June 30, 1886. The prayer of the counterclaim is, in effect, that the bill of sale and agreement be adjudged to constitute a mortgage on the stock of goods in question; that an account be stated of the sum received by plaintiff thereon; and that, on payment of any balance found due plaintiff, the defendant be adjudged the owner of the goods claimed by plaintiff in this action. The plaintiff replied to the counterclaim, denying that the bill of sale is a mortgage for an alleged loan, and claiming that it evidences an absolute and unconditional purchase of the stock by him. The issue was first tried as to whether the transactions amounted to an absolute sale of the stock of goods, or only a mortgage thereon to secure a loan of money, and was found for the defendant. That is to say, the court found VOL. 72-41 Burr vs. Dana. that the plaintiff was mortgagee of the stock, and not absolute owner thereof. Thereupon the case was referred to J. W. Hiner, Esq., to take proofs and state two accounts of payments on the loan. This involved taking accounts of moneys received by plaintiff for goods sold, and paid out by him in the purchase of new goods and for expenses. One of these accounts was to cover the time from February 24 to July 2, 1886, when this action was commenced; the other, to cover the time from the commencement of the action to the date of the referee's report, August 1, 1887. The referee stated such accounts; and under date of August 1, 1887, reported that there was due plaintiff, July 1, 1886, $2,284.86, and on August 1, 1887, $1,690. The report is very full, including numerous details, many of which are not important in the determination of this appeal. The material portions are stated in the opinion. The court confirmed the report of the referee, denying a motion of the defendant to modify the same. Judgment was duly entered for the plaintiff that he is lawfully entitled to the possession of the goods in controversy, and assessing the value of his interest therein at $1,690. On the counterclaim it was adjudged that defendant is entitled to redeem the goods on payment to the plaintiff of $1,690, and interest from August 1, 1887. The judgment gives the defendant ninety days in which to redeem, and if he fail to do so it forecloses him of any right to or claim upon the goods in question. The defendant appeals from the judgment. For the appellant there was a brief by Hicks & Phillips, and oral argument by E. R. Hicks. They contended, inter alia, that the evidence in the case is so incomplete and selfcontradictory that no just and true account can be stated from it. The only equitable method of settlement is to charge the plaintiff with the goods, credit him with the loan, and strike the balance. This is an equitable adjustment, because the plaintiff wrongfully converted the goods Burr vs. Dana. at the first, contrary to the agreement that the mortgagor should remain in possession, and afterwards claimed to be absolute owner. It is impossible to identify the original Dana goods which are now on hand. Even conceding that the plaintiff was a mortgagee rightfully in possession, if he mixed the property with his own so that it cannot be dis tinguished, he must suffer all the loss and inconvenience of such confusion, and if its condition is so changed that it cannot be restored, he must pay the value at the time it was taken. This is the universal rule where a person in a fiduciary capacity mingles assets beyond identification. Mowry v. White, 21 Wis. 422; Root v. Bonnema, 22 id. 539, 543; Mowry v. First Nat. Bank, 54 id. 38, 46. For the respondent there was a brief by Waring, Eichstaedt & Niskern, and oral argument by G. D. Waring. The following opinion was filed October 9, 188s: LYON, J. The circuit court adjudged the plaintiff a mortgagee of the goods in controversy. This is favorable to the defendant, and the judgment in this behalf is not reviewable on this appeal. Such review can only be had on an appeal by the plaintiff. He seems to be content with the judgment as it stands. The allegations of the answer and the proofs show satisfactorily that the parties contemplated that the plaintiff should take immediate possession of the stock of goods and continue the business, and from time to time replenish the stock by purchases of other goods. In so doing the plaintiff was not a wrong-doer, but his possession of the stock, and the manner in which he dealt with it, was authorized by the contract, and hence not wrongful or unlawful. As between the parties, these additions to the stock became, in equity, part and parcel of the mortgaged property, to be treated and accounted for as such. After this action was |