Doering v. Selby
| Citation | 244 P. 485,75 Mont. 416 |
| Decision Date | 18 February 1926 |
| Docket Number | 5842. |
| Parties | DOERING v. SELBY et al. |
| Court | United States State Supreme Court of Montana |
Rehearing Denied March 4, 1926.
Appeal from District Court, Missoula County; Theodore Lentz, Judge.
Suit by Caroline Doering against A. Clark Selby and others to foreclose a chattel mortgage and to recover for conversion of property covered by the mortgage. Judgment for the plaintiff as against the named defendant and his wife, and dismissing the suit as against defendant Fred Leavitt. From the latter portion of the judgment, plaintiff appeals. Affirmed.
Charles N. Madeen, of Missoula, for appellant.
H. C Packer, of Hamilton, for respondents.
On March 6, 1920, plaintiff, Caroline Doering, filed herein her complaint seeking the foreclosure of a certain chattel mortgage and for judgment against the defendants A. Clark Selby and Frances W. Selby, his wife, for the amount due on the note secured by such mortgage, and for judgment against the defendant Leavitt for damages for the conversion of certain property described in said mortgage. Personal service of summons was had on Leavitt and substituted service thereof upon the Selbys. The Selbys defaulted, and their default was duly entered. Leavitt filed an answer which is in effect a general denial of the allegations of the complaint.
The cause came on regularly for trial on the 19th day of December, 1924, when a jury was duly impaneled and sworn, and thereupon both parties introduced evidence and rested. At the close of all the evidence counsel for plaintiff orally moved the court to take the case from the jury, to make findings in favor of plaintiff on all issues in the case, and enter judgment for plaintiff accordingly. Thereupon counsel for defendant Leavitt moved the court for a directed verdict in favor of his client. By agreement of counsel the court then discharged the jury, and granted to plaintiff's counsel 10 days from and after December 20, 1924, in which to file memorandum of authorities and to defendant's counsel a like period after receipt of plaintiff's brief in which to file his memorandum of authorities.
On January 13, 1925, plaintiff filed in said cause her requested findings of fact and conclusions of law. No such request was filed by defendant's counsel. On January 28, 1925 without reference to plaintiff's proposed findings, and without making findings of fact or conclusions of law, the court rendered and ordered entered its judgment which recites:
From this judgment plaintiff has appealed, but attacks only that portion of the judgment dismissing the action as to Leavitt. Questions of law alone are presented.
The facts, briefly stated, are as follows: On May 19, 1919, Leavitt sold and delivered to A. Clark Selby a span of mules, together with a wagon and set of harness. Selby paid $50 in cash, and gave to Leavitt his note for $350, payable in monthly installments, and as a part thereof agreed that title to the property should remain in the vendor until the purchase price was fully paid, and that, on default in the payment of any installment, the vendor could retake possession, and any and all payments theretofore made should be retained as rental of the property. The contract was not filed with the clerk and recorder of any county in the state.
On May 5, 1919, defendant Selby applied to plaintiff for a loan of $300, and offered the mules, with certain other chattels, as security. Plaintiff caused the records to be searched, and, finding nothing of record against the property, made the loan, taking the note of Selby and wife payable November 1, 1919, and a chattel mortgage on the property. Selby failed to surrender to the plaintiff a receipt for a correct copy of the mortgage, and the mortgage was presented to the clerk and recorder of Missoula county without such receipt attached but nevertheless accepted and filed by the clerk.
Selby thereafter defaulted in each monthly payment to Leavitt, and in July or August Leavitt took possession of the mules. Selby relinquished all claim on the mules, and returned the harness, with a promise to return the wagon. Later Leavitt sold the mules for $350. Selby also defaulted on his note to plaintiff, and, after the maturity of the note, plaintiff, through her agents armed with a certified copy of the mortgage, made demand upon Leavitt for possession of the mules. This demand was refused by Leavitt, who stated that he claimed the mules as his own, and had already sold them as such, and this action resulted.
Plaintiff's assignments present the following contentions made by her counsel: That the court erred (1) in admitting the conditional sale contract in evidence; (2) in ignoring plaintiff's requested findings; and (3) in dismissing the action as to Leavitt.
1. As a witness in his own behalf, Leavitt testified, without objection, that he sold Selby Counsel then offered the note containing a conditional sale contract, to which offer plaintiff objected on the ground that the contract was void as to her. The objection was overruled, and the contract admitted.
It is clear from the record that plaintiff was a bona fide mortgagee subsequent to the sale and prior to the filing of the instrument, and that, if her mortgage was entitled to filing, and was regularly filed, the contract was void as to her, and should have been excluded. Section 7594, Rev. Codes 1921; Cuerth v. Arbogast, 136 P. 383, 48 Mont. 209. But even in that event the contract was valid as between Leavitt and Selby. Hennessy Co. v. Wagner, 220 P. 101, 69 Mont. 46; Hodson v. O'Keeffe, 229 P. 722, 71 Mont. 322.
In determining the admissibility of the contract, it must be remembered that, at the time it was offered in evidence, the plaintiff had already made her case, and as a part of her proof she had introduced her mortgage in evidence. She was proceeding against the mortgagors as well as Leavitt, and, as between her and the mortgagors, the mortgage was valid and admissible, even though it was not filed in the office of the clerk and recorder. Laubenheimer v. McDermott, 6 P 344, 5 Mont. 512; Chester State Bank v. Minneapolis T. M. Co., 190 P. 136, 58 Mont. 44; Degenhart v. Cartier, 192 P. 259, 58 Mont. 245. However, as against defendant Leavitt, the plaintiff's proof must have established her right to recover as against him, before he was required to introduce any proof at all (section 10616, Rev....
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