Cope v. Minnesota Type-Foundry Co.
| Decision Date | 30 June 1897 |
| Citation | 49 P. 387,20 Mont. 67 |
| Parties | COPE v. MINNESOTA TYPE-FOUNDRY CO. et al. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; Henry N. Blake Judge.
Action by George F. Cope, cashier, against the Minnesota Type-Foundry Company, J. Henry Jurgens, and Lucian Eaves. A demurrer to the amended answer of defendants Jurgens and the foundry company was sustained. Judgment for plaintiff on the pleadings was entered, and said defendants appeal. Reversed.
On March 30, 1895, a chattel mortgage upon certain personal property in the city of Helena was signed to secure the payment of certain promissory notes of even date therewith. The instrument recited that it was between "James B Ross, Albert Frank, and Lucian Eaves, composing the firm of the Ross, Frank & Eaves Pub. Co., of the city of Helena county of Lewis & Clarke, state of Montana, parties of the first part, and the Minnesota Type-Foundry Co., a corporation of the city of St. Paul, state of Minnesota, party of the second part." The affidavit attached to it was as follows:
This mortgage was duly filed in the office of the county clerk and recorder of Lewis and Clarke county on March 14, 1895. Subsequently, on June 25, 1895, there was appended to it, as recorded, to further meet the requirements of the statute, an affidavit made by the secretary and manager of the Minnesota Type-Foundry Company to the effect that the mortgage had been made in good faith, etc. On June 22, 1895, another chattel mortgage was executed upon the same property embraced in the first, to secure the payment of a promissory note payable 10 days after June 22, 1895. It recited that the indenture was between "Lucian Eaves, party of the first part, and George F. Cope, cashier, party of the second part." The affidavit to this mortgage was as follows:
The record fails to disclose that this second chattel mortgage was ever filed in the office of the county clerk and recorder. On November 13, 1895, the notes secured by the first chattel mortgage having fallen due and being unpaid, the Minnesota Type-Foundry Company caused J. Henry Jurgens, as sheriff of Lewis and Clarke county, to take possession of the mortgaged property for the purpose of selling the same in pursuance of the statute authorizing such a mode of foreclosure. On the 19th day of November, 1895, George F. Cope instituted an action against the Minnesota Type-Foundry Company, J. Henry Jurgens, and Lucian Eaves. The complaint, for a first cause of action (in claim and delivery) alleged that J. Henry Jurgens was the duly elected, qualified, and acting sheriff for Lewis and Clarke county; that plaintiff was, and ever since had been, the cashier of the First National Bank of Helena, Mont., a corporation. It set forth the terms of the mortgage executed on June 22, 1895. It averred that on the 13th day of November, 1895, the note payable to said Cope, plaintiff, had become due, and that the plaintiff had acquired a right to take and sell the chattels mortgaged in the manner prescribed by law, and that on the date last aforesaid the defendant Jurgens, at the instance of the defendant Minnesota Type-Foundry Company, a corporation organized under the laws of the state of Minnesota, without the consent of plaintiff, and wrongfully, had seized upon the foregoing chattels, and took the same into his possession, and ever since had retained the possession thereof. It alleged that plaintiff, deeming the possession of said property essential to the security of the payment of his said note, had demanded from the defendant Jurgens the possession of said property on November 14, 1895, but that said Jurgens had refused to deliver up possession thereof, and continued to wrongfully withhold said property. It failed to aver that plaintiff's mortgage had ever been filed for record. For a second cause of action in his complaint, plaintiff set forth the terms of the mortgage, the default, etc., to show that he was entitled to have his mortgage foreclosed as a first lien on the property in controversy. Among the averments was the following: "(3) That on the 26th day of June the said mortgage was extended to the 22d day of June, 1896." Again the complaint failed to state that the mortgage had ever been filed for record. The defendant Eaves defaulted. On the 15th day of January, 1896, the Minnesota Type-Foundry Company and J. Henry Jurgens filed an amended answer to the complaint. This answer denied any wrongful seizure of the chattels in controversy by Jurgens, and denied any wrongful withholding of said property by said Jurgens. It further set forth the fact and terms of the mortgage executed on the 13th day of March, 1895, and the nonpayment of the notes secured thereby. This mortgage was attached to the answer as a part thereof, and had indorsed thereon that it had been filed for record. The answer averred that F. W. Smith, the person mentioned in the aforesaid affidavit to the mortgage, was a duly-authorized agent of the defendant the Minnesota Type-Foundry Company in the matter of the execution of said mortgage. This mortgage was relied upon as a defense to plaintiff's claim. As a further defense the answer alleged that, at the times mentioned in plaintiff's complaint, plaintiff was the agent and officer of the First National Bank of Helena, Mont., that the note was payable to him simply as the agent of said bank, and that plaintiff had no personal interest in said indebtedness, and had acted only as the agent of said bank both in reference to the taking of said note and the mortgage securing the same. It also set forth as a further defense that plaintiff had full notice of the existence of the chattel mortgage executed to the Minnesota Type-Foundry Company, and was not a subsequent incumbrancer in good faith. For a further defense it also alleged that the chattel mortgage on which plaintiff relied embraced property not included in the mortgage attached to the answer. It prayed for a foreclosure of the mortgage to said last-mentioned corporation, and that plaintiff's mortgage be declared subsequent and subservient thereto. The plaintiff thereupon demurred to the answer on the ground that the same did not state facts sufficient to constitute a defense or counterclaim. The district court sustained the demurrer, and shortly afterwards granted a motion for judgment on the pleadings. The appeal is from this judgment.
McConnell, Gunn & McConnell, for appellants.
Toole & Wallace, for respondent.
BUCK, J. (after stating the facts).
The affidavit of March 14, 1895, attached...
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