Ford Hardwood Lumber Co. v. Bryant
| Citation | 13 S.W.2d 1,178 Ark. 807 |
| Decision Date | 07 January 1929 |
| Docket Number | 83 |
| Parties | FORD HARDWOOD LUMBER COMPANY v. BRYANT |
| Court | Supreme Court of Arkansas |
Appeal from Crittenden Chancery Court; J. M. Futrell, Chancellor reversed.
Decree reversed and remanded.
John E. Swepston, W. G. Riddick and Chas. T Coleman, for appellant.
Berry Berry & Berry, for appellee.
The appellant brought suit in the Crittenden Circuit Court in replevin against the appellee, alleging that it was the owner and entitled to the immediate possession of certain horses mules and camping and logging outfit, located near Louise, Arkansas, of the value of $ 2,500, and asked for judgment for said property and damages for its detention. The affidavit alleged the value of the property to be $ 2,500, and alleged that plaintiff was the owner and entitled to possession by reason of a chattel mortgage recorded in Crittenden County, Arkansas, on the 26th day of November, 1924, in which the appellee had conveyed the property to plaintiff to secure a note for $ 5,000.
The appellant executed bond, and the writ of replevin was issued, and property delivered to the appellant.
Appellee answered, denying the material allegations in appellant's complaint, and alleged that appellant failed to furnish him an itemized statement of his account, as required by law, and that said property was taken and sold in Arkansas instead of Tennessee, as provided by the mortgage. He also alleged that appellant took possession of certain property not included in the mortgage, and alleged that he was not indebted to the appellant in any sum, but that the appellant was indebted to him in the sum of $ 26,614.25.
The case was transferred to the chancery court, and the appellee there alleged, among other things, that the transactions between the parties were executed over a period beginning February, 1924, and ending in November, 1926; that, during the operations in Tennessee, the appellee delivered to appellant logs of the value of $ 19,692.99, and that on the 24th of August, 1924, appellee executed the note sued on and the mortgage to secure the payment of said note, but alleged that, before the termination of operations in Tennessee, he had paid all of his indebtedness, including the $ 5,000 note.
After the case had been transferred to the chancery court and pleadings had been filed therein, the matter was referred to a master by the chancery court, and testimony was taken, and thereafter the master filed his report, finding in favor of appellee in the sum of $ 5,880 damages, plus $ 2,810, value of the property. The damages were for wrongful detention of the property after it was taken by appellant in replevin suit.
Testimony was introduced by both sides covering the transactions between the parties, but the master only reported on that part represented by the note sued on. The master found that no account was delivered to the appellee by appellant before the institution of the suit; that the trust deed was given by defendant to secure the sum of $ 5,000 of indebtedness which appellee owed appellant on August 26, 1926, and that the indebtedness at that time amounted to $ 9,928.80; that the $ 5,000 note was executed at the same time, and that the account between the parties was continued as an open account, no credit being given for the note; that the trust deed did not secure any future indebtedness. The master also found that the indebtedness secured by the trust deed was paid before the institution of the suit, and that appellant was not entitled to any of the property described in the trust deed; that appellee was entitled to judgment for the return of the property, or its value, and for damages for its detention. The master further stated that it is difficult to determine the value of the property, but he found it to be $ 2,660, giving a value of $ 120 each for the mules, $ 125 each for the wagons and chains. The master fixed the value of miscellaneous items not covered by the mortgage, but taken by the plaintiff, at $ 150. He reported, however, that there was no testimony taken on this item, but he estimated it. He also found that the trust deed was not given to secure any particular indebtedness, but merely to secure $ 5,000 indebtedness of appellee.
Appellant filed exceptions to the master's report, but the court entered a decree approving the master's report and holding that the right to an ultimate accounting between the parties was not involved in the action, and the right of appellant to a set-off against the amount adjudged was not decided, and dismissed the plea of set-off without prejudice.
Appellee suggests that the questions to be decided are:
(1). Is the appellant entitled to the possession of the property?
(2). If not, what is the amount of damages for the wrongful detention?
(3). Under the pleadings and proof developed up to the time the report of the master was approved by the chancellor, can the appellant have a set-off against the appellee for the account?
The appellee contends that the appellant was not entitled to the possession of the property, first, because it failed to comply with the statute requiring the making and delivering to the mortgagor a verified statement of his account, etc. The statute reads as follows:
"Before any mortgagor, trustee or other person shall proceed to foreclose any mortgage, deed of trust, or to replevy under such mortgage, deed of trust or other instrument, any personal property, such mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due."
This court has held that the purpose of the statute is to give the mortgagor an opportunity, before suit, to pay the debt and to settle any controversy of any items that might be in dispute without going to law. The Legislature did not have in view the matter merely of saving the mortgagor the costs that might be incident to a lawsuit. Its purpose was not only to prevent that, but also any annoyance and inconvenience he might suffer by having property taken from him by process of law before giving him an opportunity to adjust any differences with the mortgagee, and to settle his account, if possible, without a lawsuit. The burden was therefore placed on the mortgagee, as a condition precedent to the maintenance of a suit to foreclose or for possession, that he comply with the statute. He still has the right to his debt and to any other remedy provided by law for the enforcement of its payment. See Lawhon v. Crow, 92 Ark. 313, 122 S.W. 999.
This suit, as originally brought by appellant, was for the purpose of getting possession of the property described in the mortgage, in order that it might be sold to pay the note secured by the mortgage. The appellant did not sue on any account, did not seek to recover any other indebtedness, but sought simply to replevin the property for the purpose of selling it to pay the $ 5,000 note. This court has said:
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