Firestone Tire & Rubber Company v. Elizabeth K. Hart & Trustee

• Decision Date: 06 January 1932
• Parties: FIRESTONE TIRE & RUBBER COMPANY v. ELIZABETH K. HART & TRUSTEE
• Court: Vermont Supreme Court

158 A. 90

104 Vt. 100

FIRESTONE TIRE & RUBBER COMPANY v. ELIZABETH K. HART & TRUSTEE

Supreme Court of Vermont

January 6, 1932

Special Term at Rutland, November, 1931.

Chattel Mortgages---Admissibility of Parol Evidence Consistent with Return---Harmless Error---Executors and Administrators---Notice---Principal and Surety---Legality of Officer's Return on Chattel Mortgage---Presumption in Support of Judgment---Election of Remedies---Waiver---Trial---Findings of Fact---Reference to Exhibits and Transcript.

1. Where return of officer handling foreclosure of chattel mortgage failed to show compliance with Acts 1919, No. 81, 2 in that it did not aver notice to mortgagors, parol evidence was admissible to prove fact consistent with return, which would promote justice between parties and do no injustice such return in that respect standing like return of process.

2. Where court could have allowed officer to amend chattel mortgage return so that it would reflect truth as to notice having been given mortgagors, and then have permitted it to be put in evidence, error, if any, in admitting parol evidence of notice was harmless.

3. Appointment of administratrix relates back to death of intestate.

4. Notice of mortgagors' default, delivered to wife of deceased cosurety, and specifically intended for estate, in interim between husband's death and time when she became administratrix of estate, held effective to bind estate, when she was appointed.

5. Legality of officer's sale under chattel mortgage, held not affected by omission therefrom of certain truck covered by mortgage, where court found truck was not "available."

6. In support of judgment, finding that truck omitted from sale under chattel mortgage was not "available," held by Supreme Court to mean that officer could not locate truck.

7. Where, under terms of contract, mortgagee assigned note and mortgage as security for debt of another, and in case of default mortgagee and her husband agreed to pay assignee balance of debt after it had credited thereon payments made, proceeds of collection of accounts receivable of mortgagors assigned to creditor, and other proper credits held that assignee, by collecting money on such accounts after bringing suit on contract, had not as matter of law waived mortgagors' default, right to realize on accounts and to hold mortgagee to contract not being inconsistent, and creditor having right to pursue principal and surety at same time.

8. Exception to failure of court to make exhibits and transcript part of findings, held untenable, since findings made could not be supplemented or limited by such reference.

ACTION OF CONTRACT. Plea, general issue. Trial by court at the March Term, 1930, Rutland County, Bicknell, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Novak, Bloomer & Spero for the defendant.

Webber & Leamy for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

POWERS

William and Harry Keenan, doing business as Keenan Bros., were in the garage and automobile accessory business in the town of Rutland. On March 2, 1928, they executed to their mother, Elizabeth K. Hart, wife of Tyler G. Hart, a mortgage on their tools, machinery, office equipment, and stock in trade to secure their note for $ 9,000 of that date. On or about August 20, 1929, a foreclosure of this mortgage was commenced, and a deputy sheriff took possession of the property covered. In the meantime, the business had gone on, and by November 15 of that year, Keenan Bros. had become indebted to the plaintiff to an amount approximately $ 10,000. On the last-named date, a written agreement, hereinafter called the contract, was entered into between the plaintiff, on the one side, and William Keenan, John Keenan, Mrs. Hart, and Mr. Hart, on the other, by the terms of which William was to take over and carry on the business under the management of John. Mrs. Hart was to discontinue the foreclosure proceedings and assign her note and mortgage to the plaintiff, who was to hold the same as security for its debt against Keenan Bros., and those which might accrue against William. Keenan Bros. were to assign their accounts receivable to the plaintiff for collection, and were to make certain monthly cash payments on the old debt; and in case of default in such payments, the entire debt was to become due. Mr. and Mrs. Hart were to pay the balance of the old debt, if any, after the collections and the avails of the chattel mortgage, when foreclosed, and other proper credits had been applied thereon. The plaintiff collected and applied about $ 2,390 on the old debt, and, default having been made in the cash payments, it foreclosed the chattel mortgage and applied the net proceeds on its debt. Tyler Hart died before this foreclosure commenced, and Elizabeth is his administratrix.

This suit was brought against Elizabeth a joint promissor with her deceased husband, to collect the unpaid balance of the Keenan Bros. debt. The trial below resulted in a judgment for the plaintiff, on facts found by the court, and the defendant excepted.

Though many exceptions were saved by the defendant, the real merits of this case depend upon (1) the legality of the foreclosure of the chattel mortgage, and (2) the sufficiency of the compliance with the terms of section 10 of the contract regarding notice of default.

The return of the officer who handled the foreclosure does not show a compliance with No. 81, Acts of 1919, § 2, in that it does not aver notice to the mortgagors. The defendant insists that she cannot be charged except on a showing of a legal foreclosure, insisting that she stands as a gratuitous surety.

Mrs. Hart was not, after her assignment of the mortgage, a party to it in a legal sense, and the contract aside, would not be entitled to redeem it.

Ordinarily one so situated is not in a position to...