Coffin v. Taylor

• Decision Date: 07 June 1888
• Citation: 18 P. 638,16 Or. 375
• Parties: COFFIN v. TAYLOR.
• Court: Oregon Supreme Court

18 P. 638

16 Or. 375

COFFIN v. TAYLOR.

Supreme Court of Oregon

June 7, 1888

Syllabus by the Court.

Appeal from circuit court, Wasco county.

W.L Hill and E.B. Dufer, for appellants.

Gates &amp Bradshaw and Geo. Wadkins, for respondent.

STRAHAN J.

This is an action of replevin to recover the possession of a span of horses and a set of double harness, of the alleged value of $270, and $250 for the wrongful taking and detention thereof. The answer denies the material allegations of the complaint and then alleges, in substance, by way of further and separate defense, that on April 9, 1885, the plaintiff gave the defendant a chattel mortgage on the property in controversy to secure the payment of $200 four months thereafter, and that said plaintiff neglected to pay the same; that, after such default, the defendant caused said mortgage to be foreclosed in Washington Territory, where said property was, and where said chattel mortgage was filed; and that, upon such foreclosure and sale, the defendant purchased the same for $150. The defendant Dufur only acted as attorney for Taylor in conducting said sale, and it is not now claimed that he is in any manner liable therefor. The reply, after denying the new matter in the answer, alleges, in effect that the defendant promised to advance for the plaintiff the sum of $200 to one L. Newman, and that the note and mortgage mentioned in the answer were executed solely to secure the defendant said sum of $200 so agreed to be advanced on account of the plaintiff, and that the defendant failed to make said advance for the plaintiff, and that said mortgage, and the note described therein, were without consideration. Upon the trial the jury returned a special verdict as follows: "We, the jury in the above-entitled action, find specially as follows: First. That the note which the chattel mortgage was given to secure, was given to the defendant O.D. Taylor in consideration that said O.D. Taylor would pay to L. Newman the sum of $200 on account of Coffin at Newman's; second, that the notice of foreclosure proceedings was served on the plaintiff on or prior to the 16th day of August, 1886, at Skamania county, Wash. T.; third, that the black horse is of the value of ninety-five dollars; fourth, that the bay horse is of the value of eighty-five dollars; fifth, that the set of harness is of the value of twenty dollars; sixth, that the value of the use of the property involved in this case has been two hundred dollars since the same was taken from the possession of the plaintiff. A.B. WOOLEY, Foreman." The jury also returned a general verdict in favor of the plaintiff, as follows: "We, the jury in the above-entitled action, find for the plaintiff, and against the defendant O.D. Taylor, and assess the damages at $200. We further find that the plaintiff is the owner and entitled to the possession of all the property mentioned in the complaint; that the black horse is of the value of $95; that the bay horse is of the value of $85; and that the set of harness is of the value of $20. A.B. WOOLEY, Foreman." The defendant moved for judgment in his favor on the facts found by the special verdict, and notwithstanding the general verdict, which motion was overruled by the court, and judgment rendered for the plaintiff for the recovery of the property in controversy, or $200, the value thereof, in case delivery could not be had, and for $200 damages for the unlawful taking and detention thereof; from which judgment this appeal is taken.

1. Neither the instructions given nor refused by the court upon the trial appear in the bill of exceptions. The assignments of error in the notice of appeal, so far as they relate to such instructions, must therefore be disregarded. Nor is it necessary to specially consider the rulings of the court in the admission of evidence, for the reason that the evidence offered by the plaintiff, and objected to by the defendant, related entirely to the new matter pleaded in the reply in avoidance of the new matter contained in the answer. This evidence related to an issue in the case made by the pleadings; and, if the issue was material, the evidence was so. The real point in this controversy is therefore presented by the pleadings, verdict, and judgment; and that is whether or not it is competent for the plaintiff to allege and prove upon this trial that the mortgage under which the defendant claims the property in controversy never became effectual or operated, as between the parties to it, by reason of the defendant's failure to make the advance, which it is alleged in the answer he agreed to make as the consideration for said mortgage. The plaintiff maintains that, as between himself and the defendant, the writing under and through which the defendant claims to have acquired the property in controversy was without vitality, and conferred no rights whatever upon the defendant, until he had performed the essential act on his part, which was the making of the advance to Newman for the plaintiff. A reference to the authorities is necessary to determine whether or not this position be correct. Jones, Chat. Mortg. § 96, says that such a mortgage may be in the form of a security for the payment of a sum certain, leaving the true nature of the transaction to be shown by parol proof. The extent of the security is thus limited to the amount specified in the condition, and of which the registry gives notice. But, if no advances be made under such a mortgage, it cannot, of course, be enforced by the mortgagee; nor can it be enforced by his assignee unless it...