Gilmore v. Kilpatrick-Koch Dry-Goods Co.

• Decision Date: 04 February 1897
• Parties: GILMORE ET AL. v. KILPATRICK-KOCH DRY-GOODS CO.
• Court: Iowa Supreme Court

101 Iowa 164

70 N.W. 175

GILMORE ET AL.

v.KILPATRICK-KOCH DRY-GOODS CO.

Supreme Court of Iowa.

Feb. 4, 1897.

Appeal from district court, Pottawattamie county; N. W. Macey, Judge.

In November, 1890, E. J. Trobridge was a merchant at Manilla, Iowa. He had a stock of goods and other property, aggregating about $13,000 in value. One Bennett, a cashier of a bank at Manning, was a creditor of Trobridge, in the sum of about $2,000. November 19, 1890, Bennett brought suit on his claim in the Crawford district court, aided by attachment, and levied the same on the stock of goods. On the same day seven other suits were commenced by creditors of Trobridge, and in each case attachments issued and were levied on the property. All the attaching creditors were represented by Shaw & Kunhele as attorneys. After the levy of the attachments, arrangements were made so that a chattel mortgage on the stock to each of the creditors was executed, giving priority in the order of their liens by virtue of the attachments, which gave to Bennett the first mortgage, and to the plaintiff in this suit the last one. Soon after, the defendant in this suit, a resident of Omaha, Neb., being a creditor of Trobridge in the sum of over $2,000, instituted a suit in the federal court at Council Bluffs, aided by attachment, and levied on a part of the stock covered by the mortgages that we have mentioned. The property so taken was, under orders of the court, sold as perishable, and the proceeds were afterwards applied on the judgment obtained in that case. This action is to recover for the conversion of the mortgaged property to the extent of plaintiffs' interest therein. The answer is in some eight divisions, and fraud is pleaded in various forms therein, the particulars of which can be better noticed in the opinion as the different claims are considered. After the answer was filed the cause, on motion of the defendant, was transferred and tried as an equitable action. The dictrict court gave judgment for plaintiffs in the sum of $826.15, and the defendant appealed. Affirmed.Harl & McCabe, for appellant.

Flickinger Bros., for appellees.

GRANGER, J.

1. The weight of appellant's argument is directed to the Bennett mortgage as being fraudulent, and then, because of the relation to it of the other mortgages, executed at the same time, and in pursuance of the same agreement, it is urged that all are fraudulent. After a review of the record we reach the conclusion that the transactions complained of are none of them fraudulent. A fact upon which a claim of fraud is based is that a separate instrument, affecting the Bennett mortgage, was executed, and it is as follows: “E. J. Trobridge, Manilla, Iowa: It is hereby agreed that F. A. Bennett, cashier, shall not take possession under the chattel mortgage this day given to him until default therein, unless such action shall be necessary to protect us against other creditors. [Signed] F. A. Bennett, by Shaw & Kunhele.” The particular complaint is that the instrument is an agreement between Trobridge and Bennett to protect themselves from other creditors; that is, both Trobridge and Bennett. The word “us” in the instrument is construed as meaning the parties we have named. There is nothing, independent of the instrument, to aid such a construction, and the instrument itself is against it. The words “protect us against other creditors” show that whoever was to be protected against other creditors was a creditor of Trobridge, and the construction claimed is inconsistent with such a conclusion. It appears from the record that Bennett's interest as mortgagee was as cashier of the bank. He is so described, and we have no doubt that the word “us,” in the instrument, means the bank. The plural form of expression used is not unusual, where one of a firm or corporation, consisting of an aggregation of persons, refers to the firm or corporation. It indicates that the person speaking has in mind the persons interested constituting the organization. It is a convenient and quite general form of expression in business intercourse. It is urged that an agreement by which Trobridge was to have the possession of the property for a definite period, save upon the happening of one contingency, makes the mortgage fraudulent. It is the law that...