The following opinion was filed October 9, 1888:
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 *644commenced, the stock was redelivered to the plaintiff, who continued the business as before until February 23, 1887. He then ceased making sales, boxed the unsold goods, and still retains them in his possession.
The principles upon which the accounting between the parties in respect to the mortgaged stock should be had seem to us very plain. The plaintiff should be credited with $2,300 as of May 1, 1886; also with the cost of all goods added to the stock, and expenses paid b}r him in carrying on the business. He should be charged with the sums he received from the sales of goods, whether out of the original stock or the additions made thereto. After a pro per adjustment of interest on the loan and on payments, the balance between the amounts so credited and so charged to him will be the amount still unpaid on the loan. The items necessary to the statement of the account on that basis are furnished in the report of the referee. This report has passed successfully the scrutiny of the learned circuit judge, and seems to be well sustained by the evidence. As a matter of course, absolute certainty in stating such an account is unattainable, but we are satisfied that the respective amounts reported by the referee approximate accuracy as nearly as practicable.
Interest should be allowed the plaintiff on $2,300 from May 1, 1886; and the defendant should be allowed interest on the amount which the not receipts of the store reduced the debt, July 1,1886, and August 1,1887, from some average or equated time. Thus the payments which made such reduction before July 1, 1886, run through four months, commencing February 24th. Hence interest thereon should be computed from Majr 1, 1886. On the same principle the defendant should be allowed interest on the net reduction of payments made between July 1, 1886, and February 23, 1887 — about eight months. Interest on the amount of *645that reduction should commence, therefore, about November 1, 1886.
The referee reported that the plaintiff added new-goods to the stock, previous to July 1, 1886, which cost $372.16; that the-expenses of the business to that date paid by him were $619.10; and that his "total receipts from the store to that date were $1,705.56. He further reported that the plaintiff paid for new goods put- in-the stock between July 1, 1886, and February 23,1887 (when sales ceased), $921,63; that the expenses of the business during the same time were $1,128.95; and that the total receipts from the store during the same period were $2,760.51.
In addition to the new goods above mentioned, the plaintiff purchased a stock of goods in Waupun, in March, 1886, for which he paid $554.55. He put this stock in the store, commingling it with the other goods there, and sold from the same without keeping any separate account of the amount of such sales. He treated it in all respects as a portion of the mortgaged stock, and, for reasons already given, we think properly so. The report of the referee contains findings in respect to this stock of goods; but, in the computations to ascertain the state of the accounts between the parties, the Waupun stock, and the proceeds thereof, seem to have dropped out of the case. The judgment does not treat it as a portion of the mortgaged stock subject to redemption, but only adjudges to the defendant, in case he redeems, what remains of the original Dana & Shaw stock, and of the new goods purchased with the proceeds thereof. In this respect it is erroneous. The judgment should provide that, in case of redemption, the defendant should be entitled to the goods of the Waupun stock which remain unsold. The value of these was found by the referee to be $578.98. It also results from this view that the plaintiff should be credited with the amount he paid for such stock, which was $554.55.
*646Stated upon the foregoing principles, tlie account will stand as follows:
Account to July 1,1886.
Plaintiff, Cr.
Loan to Dana & Shaw. $3,300 00
Interest, May 1 to July 1, 1886. 26 83
Paid for Waupun stock. 554 55
“ “ new goods.■.... 372 16
“ “ expenses. 619 10
$3,872 64
L'r.
Receipts from store... $1,705 66
Int. from May 1, on $132.92, 2 mos. 1 56
-$1,707 12
Due on mortgage debt, July 1, 1886..$2,165 52
Account to August 1, 1887.
Or.
Due July 1, as above. $3,165 52
Interest from that date to August 1, 1887 164 22
Paid for new goods, after July 1, 1886.... 921 63
“ “ expenses “ “ “ “ ... 1,128 95
$4,380 32
L'r.
Receipts from store after July 1, 1886.$3,760 51
Int. from November 1, 1886, on $545.71, to August
1, 1887 . 28 68
- $3,789 17
Due plaintiff, August 1, 1887. $1,591 15
Add interest from that date to the date of redemption.
This is nearly $100 less than the sum found due the plaintiff by the referee and the circuit court.
Because the judgment requires the defendant to pay more than the amount due the plaintiff to redeem the property, and because it fails to include what remains unsold of the Waupun stock, it must be reversed.
By ihfi Court.— Judgment reversed, and cause remanded .with directions to the circuit court to render the judgment indicated in the foregoing opinion.