Smart

Action to recover damages for wrongful conversion of personal property. The first count of the complaint is based upon the alleged wrongful action of the defendant, as constable, in seizing and holding and selling under execution certain personal property which was subject to a chattel mortgage, in favor of the plaintiff, without compliance with the provisions of section 2969 of the Civil Code, which is as follows: “Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee.” The second cause of action is for the wrongful taking of certain other personal property under the same execution, said personal property being alleged to be the property of the plaintiff. Judgment in favor of the defendant, from which judgment the plaintiff appeals.

On the twentieth day of January, 1919, Charles I. Hixson entered into a contract with the plaintiff relating to the manufacture and sale by Hixson of certain merchandise to be known as Hixson’s Hansoap. It was provided that Smart “agrees to furnish the necessary finances…