Abernethy v. Uhlman

• Decision Date: 25 February 1908
• Citation: 52 Or. 359,93 P. 936
• Parties: ABERNETHY et al. v. UHLMAN et al.
• Court: Oregon Supreme Court

93 P. 936

52 Or. 359

ABERNETHY et al. v. UHLMAN et al.

Supreme Court of Oregon

February 25, 1908

Appeal from Circuit Court, Yamhill County; William Galloway, Judge.

Action by Charles H. Abernethy and others against S. Uhlman and others. From a decree directing that the proceeds of a portion of a crop belonging to defendant Go Sun be applied pro rata on the claims of plaintiffs and defendants Uhlman both parties appeal. Reversed and rendered.

This is a suit commenced by cross-bill to an action pending as to the right to possession of 55 bales of hops; the conflict growing out of the following facts: The plaintiffs leased to defendant, Go Sun, a Chinaman, 19 acres of hops for a term of five years from February, 1902, plaintiffs to furnish him with team, tools, dryhouse, wood, poles, water, and dwelling and to pay for one-half of the burlap and sulphur, Go Sun to cultivate, care for, harvest, cure, and bale the crop at his own expense, and when so harvested and baled, to deliver to plaintiffs one-third of such crop on the place, and on March 11, 1905, for the purpose of securing money with which to cultivate and harvest said crop under said lease for the year 1905, Go Sun made arrangements with defendants, S. and F Uhlman, who were hop dealers, to advance to him $1,500. To secure the said Uhlmans for such advancement as should be made, he executed to them a chattel mortgage on his two-thirds of such crop for that year; the reference in the mortgage to such advancements being in the following language: "That, whereas, the party of the first part expects to become indebted to the parties of the second part within six months from the date of this instrument, for advances and loans to be made by the parties of the second part to the party of the first part, to an amount not exceeding in the aggregate the sum of fifteen hundred ($1,500) dollars, gold coin of the United States, for which loans and advances the party of the first part is to execute to the parties of the second part, one or more negotiable promissory notes, payable at such periods as may be agreed upon by the parties hereto, and bearing interest at the rate of 8 per cent per annum from the date of said notes and at the dates in schedule hereunto annexed."

To this is appended a schedule as follows:

"Schedule of dates when advances are to be made hereunder and notes given and amounts of each are as follows, about:

                            March 11, 1905, the sum of 
                          
                            $ 100
                          
                            April 15, 1905 
                          
                            50
                          
                            June 1, 1905 ....................
                          
                            150
                          
                            September 1, 1905 ...............
                          
                            600
                          
                            On close of picking, bal.........
                          
                            600
                          
                            
                          
                            -------
                          
                            
                          
                            $1,500"
                          
                

It appears also from the testimony of Judge Woodward and M. H. Gilbertson that defendants promised to advance said sum to Go Sun for such purposes; that prior to September 1, 1905, defendants, the Uhlmans, had advanced to Go Sun, under the terms of said mortgage, the sum of $700, and finally refused to advance any further sums; that on about September 1st Go Sun was unable to procure laborers to pick said hops on his own credit, and applied to the plaintiffs to employ them for him, assuring plaintiffs that the money therefor would be advanced by the Uhlmans; and on or prior to September 6th plaintiffs secured the laborers for Go Sun, and expended for such labor and other expenses in harvesting the crop, $841.51. As security for the repayment thereof, Go Sun delivered the hops to them, whereupon the Uhlmans brought replevin to recover the hops under their mortgage, and plaintiffs brought this suit to establish their superior right to the hops to reimburse themselves for such advances. The lower court decreed that the liens of defendants S. and F. Uhlman and plaintiffs are equal, and that the proceeds of Go Sun's portion of the crop be applied pro rata upon the claims; and both parties appeal.

W.M. Kiser, for appellants.

M.L. Pipes, for respondents.

EAKIN, J. (after stating the facts as above).

The question involved is whether plaintiffs' claim for such advances is superior to defendants' mortgage. Chas. Abernethy testifies that Gilbertson, who was the agent for the defendants, S. and F. Uhlman, throughout this transaction, sent for him to come over to the Eldriedge yard on September 6th, and while there Gilbertson gave him instructions to go ahead and gather the hops. He asked Gilbertson about picking money, and the latter said he would be on hand to pay the pickers when the work was finished. This is corroborated by Go Sun, who was present, and by Mrs. Eldriedge, who had a conversation with Gilbertson on the morning of that day. Gilbertson admits part of the conversation with Abernethy, but does not remember any of the conversation with him as to picking money for his place, and claims that his talk with Go Sun and Mrs. Eldriedge referred only to the Eldriedge yard, which was also cropped by Go Sun. Gilbertson was undoubtedly anxious that the crop should be harvested, and used this plan to interest Abernethy; and we conclude from the evidence and circumstances that Gilbertson did on September 6th promise Abernethy and Go Sun that he would be on hand at the close of the picking to pay the hands, and requested Abernethy to assume the liability of the harvesting and he would repay him. The general rule as to the effect of a mortgage given to secure advances, even where the mortgagee agrees to advance a definite amount, if only a part of such amount is advanced, the mortgagee may nevertheless foreclose the mortgage for the amount due, subject to a set-off for any damages the mortgagor may have suffered by reason of the failure of the mortgagee to advance the whole sum. Coleman v. Galbreath, 53 Miss. 303; Watts v. Bonner, 66 Miss. 629, 6 So. 187. But there are additional elements involved here which preclude the application of that rule. This promised advancement was for the accomplishment of a particular thing, namely, cultivating and harvesting the crop covered by the mortgage.

Plaintiffs were interested in the crop to the...