#### Emerson-Brantingham Implement Company, Appellant, vs. Paul, Respondent.

*May 25*

June *13, 1916.*

*Chattel mortgages: Affidavit after sale: Requirements: Penalty.*

Under sec. 2316c, Stats. 1915, — providing that whenever property covered hy a chattel mortgage shall he taken and sold thereunder, the owner of the mortgage shall, within ten days after the sale, file an affidavit setting forth, among other things, “a statement in detail of the expenses of such sale, including the cost of taking and keeping the property pending the sale,” and that “a copy of the notice of sale if any shall he attached to said affidavit,” — the requirements as to a *detailed*statement of expenses and as to the copy of the notice are both important, and a failure to comply therewith operates to satisfy the debt and cancel the mortgage.

Appeal from a judgment' of tbe circuit court for Green Lake county: Cuestes, A. Eowlee, Circuit Judge.

*Affirmed.*

Tbis is an action to recover tbe balance due on certain notes given for tbe purchase price of a traction engine. Tbe defendant is not tbe maker of tbe notes, but it is alleged tbafc be promised in writing to pay them.

Tbe defendant’s son purchased á traction engine from tbe plaintiff for tbe sum of $2,190 in September, 1912. He *590turned in an old engine and made some payments in cash, in all amounting to tbe sum of $595. He gave notes for tbe balance of 'tbe purchase price. Tbe plaintiff claims that tbe father, tbe defendant here, bad agreed to sign tbe notes with tbe son at tbe time of tbe sale of tbe engine, but refused to so sign when tbe plaintiff offered to deliver the engine at tbe farm of defendant. It also appears that plaintiff’s agent then threatened to take tbe engine back to tbe factory. After further negotiations tbe defendant signed tbe following writing:

“I will not sign tbe notes for my boy, John N. Paul, for engine No. 6896, but I will help him and will see that be pays-tbe notes when due, and will pay tbe notes if he don’t.”

Delivery of tbe engine was therefore made to the son, who used it for one threshing season. He defaulted in making payment of tbe note first due. In September, 1913, the plaintiff company took tbe engine under a chattel mortgage it held on the property to secure tbe payment of tbe balance of the purchase price. Tbe engine was sold after seizure and was bid in by tbe plaintiff for tbe sum of $850. Tbe mortgage provided that at any sale tbe mortgagee, its successors or assigns might become tbe purchaser of said property. Within ten days after tbe sale of tbe engine F. W. Morgan, acting as agent for tbe plaintiff to sell tbe engine, filed with tbe proper officer an affidavit of tbe chattel mortgage sale and a statement of tbe expenses of tbe sale as follows: “Posting notice of sale, livery, and expenses, $10. Expenses of taking and keeping property pending sale, $24. Total expense, .$34,” — but did not attach a copy of tbe notice of sale. Tbe proceeds of. tbe sale, after deducting tbe expense thereof, were applied on tbe notes, and this action was brought to recover tbe amount still remaining unpaid on tbe notes.

At tbe close of tbe plaintiff’s testimony tbe court awarded a nonsuit upon the ground that plaintiff failed to file a proper affidavit with notice of sale attached of tbe chattel *591mortgage sale, and entered judgment dismissing the complaint and for the costs and disbursements of the action. Erom such judgment this appeal is taken.

Eor the appellant there was a brief by *E.*W. *Phelps*and *L. E.*Purvey, and oral argument by *Mr. Purvey.*

*For*the respondent there was a brief by *Pehner & Ijehner,*and oral argument by *Philip Pehner.*

Siebeckee, J.

By sec. 2316c, Stats. 1915, it is provided that whenever the owner of a chattel mortgage shall take and sell the chattels covered by the mortgage he shall within ten days after the sale “make and file an affidavit setting forth,” among other things, “a statement in detail of the expenses of such sale including the cost of taking and keeping the prop.erty pending the sale. A copy of the notice of sale if any shall be attached to said affidavit and be deemed a part thereof.” This court, in *Hammel v.*Cairnes, 129 Wis. 125, 107 N. W. 1089, declared: “The statute under consideration is not only highly penal, but drastic in its character;” and “It is well settled that such statutes should receive strict construction in order to avoid forfeiture, if such can be done without doing violence to the language of the statute.” In *Schoenmann v.*Hood, 145 Wis. 241, 130 N. W. 101, the court states that the legislative object cannot be ignored and “the courts must . . . enforce it as it stands and award to all persons within its purview . . . whatever rights they may have acquired under it.” The affidavit herein filed, contains this: “Posting notice of sale, livery, and expenses, <$10. Expenses of taking and keeping property pending sale, $24. Total expense, $34.” There is no detail specification of the items of either charge, though it is admitted by the affiant that each amount includes different items, disbursed by the agent of the plaintiff. Concededly there is no copy of the' notice of sale attached to the affidavit. The claim that these defaults in 'complying with the statute are *592unimportant and did not prejudice tbe defendant in any way is not well founded. These requirements are equally as important as any other to meet the calls of the statute. The trial court very properly held: “The itemization of expenses would seem to be as fruitful of good and as much likely to prevent oppression and injustice as any other requirement, and no doubt the purpose of the statute was to prevent oppression and overreaching by requiring fullest publicity.” The filing of a copy of a notice of sale is very useful to show that the sale was properly advertised to attract prospective bidders. We are left wholly without information what* the notice contained both as to form and substance. It is not known whether it was a notice which apprised the public of the nature of the property or of the conditions of the sale. The plaintiff was clearly'in default in these respects and thus deprived the mortgagor of the benefits of the provision of the statute. It is considered that the circuit court properly ruled that the failure of the mortgagee to comply with this statute operated to satisfy the debt and cancel the mortgage.

*By the Court.*— The judgment appealed from is affirmed.