Advance-Rumely Thresher Co. v. Brady

• Decision Date: 06 June 1929
• Docket Number: 5092
• Citation: 278 P. 224,47 Idaho 726
• Parties: ADVANCE-RUMELY THRESHER COMPANY, a Corporation, Appellant and Cross-respondent, v. J. F. BRADY, Respondent and Cross-appellant
• Court: Idaho Supreme Court

278 P. 224

47 Idaho 726

ADVANCE-RUMELY THRESHER COMPANY, a Corporation, Appellant and Cross-respondent, v. J. F. BRADY, Respondent and Cross-appellant

No. 5092

Supreme Court of Idaho

June 6, 1929

APPEAL AND ERROR-EVIDENCE-ERRONEOUS ADMISSION-WHEN HARMLESS-CHATTEL MORTGAGES-FORECLOSURE-STATUTORY COMPLIANCE-DEFICIENCY-CONVERSION-LIENS-MEASURE OF DAMAGES.

1. In action to recover deficiency due after foreclosure of chattel mortgage on tractor, erroneous admission of evidence relating to new contract which did not become effective because not accepted by plaintiff was not prejudicial to plaintiff, where defendant recovered nothing on account of such evidence having been introduced.

2. In action to recover deficiency due after foreclosure of chattel mortgage on tractor, affirmative defense based on alleged false oral representations in sale of tractor held properly withdrawn from consideration by jury, as failing to state good defense, where contract by its terms required express warranties to be in writing in order to be binding.

3. Failure to foreclose chattel mortgage in compliance with statute deprives the mortgagee of right to any deficiency.

4. Measure of damages for alleged conversion of property subject to chattel mortgage would be value of converted chattel at time of conversion.

5. Damages suffered by reason of conversion of property may be mitigated by offsetting against them amount of any lien outstanding against property at time of conversion.

6. In action to recover deficiency due after foreclosure of chattel mortgage, in which defendant filed cross-complaint, seeking damages for alleged conversion of tractor by plaintiff question of value of tractor was properly withdrawn from jury, where it was sold shortly after alleged conversion for sum considerably less than amount of mortgage, and defendant offered no evidence to show that tractor was worth more than such sum or that sale was not fair one.

7. In action to recover deficiency due after foreclosure of chattel mortgage on tractor, cross-complaint based on failure of plaintiff to deliver tractor held properly dismissed, where there was no evidence that defendant made any complaint to plaintiff for its failure to deliver tractor as required by contract.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to recover deficiency due after foreclosure of chattel mortgage. Judgment for defendant. Affirmed.

Judgment affirmed. No costs awarded.

H. R Turner, for Appellant, cites no authorities on points decided.

F. E Tydeman, for Respondent.

Unless the chattel mortgage was foreclosed in the manner provided by statute, plaintiff is not entitled to recover any deficiency.

In Rein v. Callaway, 7 Idaho 634, 65 P. 63, this court held, "a mortgagee, who by his own illegal acts disposed of the mortgaged personal property cannot maintain an action for any balance due on the mortgage debt."

The provision of law relative to the summary foreclosure of chattel mortgages must be strictly followed. If there is a deviation therefrom, and the property is sold by or through the acts or procurement of the mortgagee, without such compliance with the statute, he cannot thereafter maintain any action to collect a deficiency. (First Nat. Bank v. Poling, 42 Idaho 636, 248 P. 19.)

GIVENS, J. T. Bailey Lee, Wm. E. Lee and Varian, JJ., and Baker, D. J., concur.

OPINION

GIVENS, J.

Respondent purchased a tractor from appellant in May, 1925, giving in payment three notes secured by a chattel mortgage. The first note was due in November, 1925. Default having been made in its payment and by the terms of the notes the entire amount having thereby become due, appellant sought, by notice and sale, to foreclose the chattel mortgage and thereafter brought this action to recover a deficiency judgment.

Respondent in his answer set out three affirmative defenses and also counterclaimed on three causes of action. For a first defense he alleged that the chattel mortgage had not been legally foreclosed. For a second defense he alleged that a new agreement had been made by the parties in December, 1925, whereby the tractor which he had purchased in May was to be traded for a new one, he to pay the difference in price between the old and the new tractor and be allowed as a credit on the new the payments which he had made on the old. The third defense was based on alleged false representations made to respondent by appellant's agents concerning the condition of the tractor, its power and performance.

In his cross-complaint respondent stated three causes of action. The first alleged a conversion of the tractor by reason of the alleged illegal foreclosure. The second cause was, in effect, based on alleged false representations made to respondent by appellant's agents concerning a difference in the cost and effectiveness of plowing with horses and with a tractor. The third cause in the cross-complaint was based on the failure of appellant to deliver the tractor, as the result of which respondent suffered loss from his inability to cultivate his crops.

In its instructions the trial court withdrew from the consideration of the jury the third affirmative defense and the three causes of action in the cross-complaint on the ground that there was no evidence to support them. The only questions submitted concerned the legality of the foreclosure and the existence of the alleged new agreement. The jury found for the respondent. Appel...