Adamson v. Moyes

• Decision Date: 21 October 1919
• Citation: 184 P. 849,32 Idaho 469
• Parties: WILLIAM ADAMSON, Respondent, v. W. G. MOYES and FRANK M. WEINHEIMER, Respondents, and AMALGAMATED SUGAR COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

184 P. 849

32 Idaho 469

WILLIAM ADAMSON, Respondent, v. W. G. MOYES and FRANK M. WEINHEIMER, Respondents, and AMALGAMATED SUGAR COMPANY, a Corporation, Appellant

Supreme Court of Idaho

October 21, 1919

CHATTEL MORTGAGES-SALE OF MORTGAGED PROPERTY-LIEN, WAIVER OF.

1. The purchaser of mortgaged personal property takes the title free from the lien of the mortgage if the sale was made with the express or implied consent of the mortgagee.

2. An action for tortious taking of mortgaged personal property cannot be maintained by a mortgagee where the taking was with his consent.

[As to the mortgagee's right of action against third persons see note in 109 Am.St. 431]

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action by cross-complainant to subject the proceeds of mortgaged property to the lien of the mortgage. Judgment for cross-complainant. Reversed.

Judgment against appellant Amalgamated Sugar Company in personam reversed. Costs awarded to appellant, against respondent Weinheimer.

T Bailey Lee, for Appellant.

"A purchaser of mortgaged property takes the title free from the lien of the mortgage, if the sale was made with the express or implied consent of the mortgagee." (7 Cyc. 47, note 54; Knollin & Co. v. Jones, 7 Idaho 466, 468, 63 P 638; Saxton v. Breshears, 21 Idaho 333, 121 P. 567.)

To sue in assumpsit, conversion must be plead. (Lehmann v. Schmidt, 87 Cal. 15, 25 P. 161; Fratt v. Clark, 12 Cal. 89; Roberts v. Evans, 43 Cal. 380, cited by Chittenden v. Pratt, 89 Cal. 178, 26 P. 626.)

E. L. Ashton, for Respondent Weinheimer.

The taking of the beets by the company was a tort and it substituted its promise, implied by the law, to indemnify the mortgagee for his loss. (Chittenden v. Pratt, 89 Cal. 178, 26 P. 626; Bollen v. Wilson Creek etc. Trading Co., 90 Wash. 400, 156 P. 404.)

The mortgagee did not lose his right by his letter to the company warning it of his mortgage and requiring payment to him. (Chittenden v. Pratt, supra; Maier v. Freeman, 112 Cal. 8, 53 Am. St. 151, 44 P. 357; Ziegler v. Ilfeld, 52 Colo. 275, Ann. Cas. 1913D, 583, 122 P. 56.)

If the mortgagee's complaint and the evidence show him entitled to legal relief, he should receive it at the hands of the court, regardless of his prayer. (Pomeroy's Code Remedies, sec. 11, p. *71, and sec. 21, p. *82; Anderson v. War Eagle Consolidated Min. Co., 8 Idaho 789, 803, 72 P. 671.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

Respondent Weinheimer owned certain land in Twin Falls county, which he rented to respondent Moyes for the period extending from March 1, 1915, to March 1, 1916, Moyes giving Weinheimer a chattel mortgage for $ 650 upon the crop to be grown thereon during the season of 1915, upon which Moyes paid the sum of $ 130.

Respondent Adamson performed work and labor on the crop for Moyes, of the reasonable value of $ 315, which was not paid when due and a claim of lien was filed therefor.

Moyes sold the beets, which constituted a part of said crop, to the appellant, Amalgamated Sugar Company. Before all of the beets were dug, Weinheimer notified the sugar company of the mortgage, by mail, in a letter which reads as follows:

"Twin Falls, Ida., Oct. 21, 1915.

"Sugar Beet Company,

"Burley, Idaho.

"Gentlemen:

"Mr. Moyes of Murtaugh, Idaho, has my farm rented and when the beets are harvested and you get ready to settle, please notify me at Twin Falls for I have a mortgage on their (his) crop and it might save trouble in settling up with him if the check is made out to me.

"Resp., F. M. WEINHEIMER."

While the beets were being delivered, Weinheimer's attorney again notified the sugar company of the mortgage and the company replied in writing that Moyes' check would be held subject to Weinheimer's order.

After the beets were delivered to the sugar company, the Utah Implement & Vehicle Company brought an action against Moyes in the probate court of Cassia county, and garnished the sugar company. This action finally went to judgment in favor of the Utah Implement & Vehicle Company, and the sugar company was required, upon proceedings supplementary to execution, to pay over to the sheriff the amount of the judgment in the latter action, $ 428.35.

Adamson then brought suit to foreclose his laborers' lien, making Moyes, Weinheimer and the sugar company defendants. Moyes defaulted, Weinheimer answered and filed a cross-complaint and the sugar company answered. The cause was tried before the court. Findings of fact and conclusions of law were filed and judgment entered in favor of Adamson, against Moyes and the sugar company, for the total amount of his claim, attorney fees and costs, and the same declared to be a first lien against the proceeds from the sale of the beets to the sugar company, amounting to $ 712.17. Weinheimer was given judgment against...