Avery Mfg. Co. v. Leathers

• Decision Date: 31 March 1908
• Citation: 130 Mo. App. 202,109 S.W. 851
• Parties: AVERY MFG. CO. v. LEATHERS.
• Court: Missouri Court of Appeals

109 S.W. 851

130 Mo. App. 202

AVERY MFG. CO. v. LEATHERS.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

1. CHATTEL MORTGAGES—FORECLOSURE—PROCEEDS OF SALE—APPLICATION BY CREDITOR.

A holder of notes maturing at different times and secured by mortgage stipulating that the whole debt shall be due on the failure to pay the note first maturing has the right, in the absence of any direction by the debtor, to apply the sum realized on a sale of the mortgaged chattels on nonpayment of the note first maturing as a credit on any of the notes.

2. SAME—CONSIDERATION.

The extension of time for the payment of the first of several notes maturing at different times is a sufficient consideration for a chattel mortgage to secure new notes as collateral security for the payment of the first of such several notes.

3. SAME—WAIVER OF SECURITY.

A suit on a note for the payment of which a chattel mortgage was given as collateral security does not operate as a waiver of the security.

4. SAME—DEFAULT—REMEDIES OF MORTGAGEE—SPLITTING CAUSE OF ACTION.

The bringing of a suit on a note for the payment of which a chattel mortgage was given as collateral security is not a splitting of a cause of action, and does not prevent enforcement of the mortgage.

5. SAME — DISCHARGE — JUDGMENT ON DEBT SECURED—EFFECT.

A judgment on a note for the payment of which a chattel mortgage was given as collateral does not discharge the mortgage.

6. SAME—RIGHTS OF MORTGAGEE.

Where a debt to secure which a chattel mortgage was given is past due, the mortgagee is entitled to the possession of the chattels mortgaged.

Appeal from Circuit Court, Ozark County; Jno. T. Moore, Judge.

Action by the Avery Manufacturing Company against J. W. Leathers. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

F. H. Tichenor, for appellant. G. W. Boone and Fred Stewart, for respondent.

BLAND, P. J.

On January 7, 1903, defendant executed and delivered to plaintiff, an Illinois corporation, his three several promissory notes, aggregating $1,874.25; one for $625, due October 1, 1903, one for $624.25, due October 1, 1904, and one for $625, due October 1, 1905. To secure the payment of these notes defendant gave a chattel mortgage on an engine and separator. Default was made in the payment of the first note. But on December 1, 1903, defendant paid $20 thereon, and on the third day of the same month, in consideration of an extension of the time of payment of said note, defendant, as collateral security for its payment, gave plaintiff his three several promissory notes for $219.55, each due, respectively, April 1, July 1, and September 1, 1904, and to secure said collateral notes executed and acknowledged a chattel mortgage on some of his horses and cattle. The mortgage provided that in the event of default in the payment of any one of said collateral notes,...