Gibson v. McIntire

• Decision Date: 29 January 1900
• Citation: 81 N.W. 699,110 Iowa 417
• Parties: S. GIBSON, Appellant, v. JOHN M. MCINTIRE, JOHN P. HORNISH and Z. R. J. AYRES & SONS
• Court: Iowa Supreme Court

81 N.W. 699

110 Iowa 417

S. GIBSON, Appellant, v. JOHN M. MCINTIRE, JOHN P. HORNISH and Z. R. J. AYRES & SONS

Supreme Court of Iowa, Des Moines

January 29, 1900

Appeal from Wapello District Court.--HON. T. M. FEE, Judge.

ACTION for conversion of personal property. There was a trial to the court without a jury, and a judgment dismissing the plaintiff's petition. Plaintiff appeals.

Affirmed.

Earle & Prouly for appellant.

Blake & Hall and John P. Hornish for appellees.

DEEMER J. GRANGER, C. J., not sitting.

OPINION

DEEMER, J.

The trial court made a finding of facts, from which we extract the following that are deemed material to the settlement of the issues involved: In January of the year 1893 plaintiff became the owner of a stock of jewelry and fixtures situated in a certain building in the city of Ottumwa. At the time he acquired his title there was a chattel mortgage of about four hundred dollars upon the stock, which had been executed by one Oliver, a prior owner, in April of the year 1891, to Spaulding & Co., and then owned by the Iowa National Bank. The bank took possession under its chattel mortgage, and advertised the property for sale on the twenty-fifth of January, 1893. After the bank had taken possession of the property, plaintiff said to the bank that, if it would postpone the sale ten days, she would pay the amount due on the mortgage, and the bank, in consideration thereof, agreed to postpone the sale. Instead of complying with its promise it sold and assigned its mortgage before the day originally set for the sale to the defendants Ayres & Sons, and Ayres & Sons proceeded to sell the property under the mortgage on the day first fixed for the sale. None of the defendants had any notice of the alleged agreement between plaintiff and the bank. The mortgage, as executed, covered all the stock and fixtures then belonging to Oliver, and also contained this further description: "The mortgage is to cover all fixtures of every kind; all goods, wares, and merchandise; all personal property of every kind to be put in said room of Mrs. Ross." In August of the year 1892 Oliver sold the stock of goods and fixtures to one Davidson. Davidson sold the stock to one Miller in January, 1893, and Miller sold to plaintiff. During the time Davidson owned the stock he added about three thousand dollars worth of goods thereto, which were of the same general character and description as those covered by the mortgage. When Oliver sold to Davidson, the stock, exclusive of the fixtures and furniture, was worth about two thousand dollars. The bank, as we have seen took possession of all the stock, and advertised the same for sale. After it had taken possession, plaintiff claimed that the mortgage did not cover all the stock, but made no demand for that part not covered by the mortgage. When Oliver sold to Davidson, there remained on hand of the stock in his possession when he made the mortgage, goods to the approximate value of about two hundred dollars, but the court found the evidence relating thereto uncertain and unsatisfactory. At the time of the sale the fixtures were worth about three hundred and fifty dollars and the stock about two thousand dollars. The action is against Ayres & Co., the owners of the mortgage, John W. McIntire, their agent for the sale of the goods, and John P. Hornish, who, so far as the record shows, had no connection with the sale. As conclusions of law the trial court found that the agreement for time was without consideration, and that, so far as defendants were concerned, they were not bound thereby, because they had no notice thereof, and that the sale was not illegal; that the sale was fair and regular, and that the goods brought all they would bring; that plaintiff should have demanded the goods not covered by the mortgage, and the privilege to separate them, and that, as plaintiff made no such demand, and did not undertake to separate the goods, defendants are not liable; that the sale was made in accordance with the terms of the mortgage, and was not illegal, because the procedure prescribed by the statute was not followed; and that defendants were entitled to a judgment for costs.

We have nothing but the pleadings, the findings of fact, and the conclusions of law, and, as plaintiff does not question these findings they must be accepted as a verity. The questions presented by the appeal relate to the validity of the sale. First, it is contended that the sale was irregular because not made under the statute. Section 4543 of McClain's Code, which was in force at the time the sale was made, provided that "a chattel mortgage may be foreclosed by notice and sale as hereinafter provided, unless a stipulation to the contrary has been agreed upon by the parties, or may be foreclosed by action in the proper court." The notice and sale were in exact accord with the stipulations contained in the mortgage, and were, therefore, valid, unless it be for the agreement between plaintiff and the bank postponing the day of sale. Gear v. Schrei, 57 Iowa 666, 11 N.W. 625; Johnston v. Robuck, 104 Iowa 523, 73 N.W. 1062. The court found that the agreement postponing the time of sale was without consideration, and that the defendants had no notice thereof. We are of opinion that his conclusion that the agreement was without consideration is erroneous. Plaintiff did not, when she purchased the stock, assume and agree to pay the mortgage. The property was bound for the payment of the debt, but plaintiff was not. The consideration for the promise of the bank to postpone the time of sale was plaintiff's agreement to pay the amount due on the mortgage. That it is a good and valuable consideration, see Provonchee v. Piper, 68 N.H. 31 (36 A. 552); Burke v. Dillin, 92 Iowa 557, 61 N.W. 370; Lomax v. Smyth, 50 Iowa 223. That defendants did not have...