Goggins v. Bookout
| Decision Date | 31 January 1963 |
| Docket Number | No. 10411,10411 |
| Citation | 141 Mont. 449,378 P.2d 212 |
| Parties | Jack GOGGINS, Plaintiff and Appellant, v. Melvin BOOKOUT, Defendant and Respondent. |
| Court | Montana Supreme Court |
Thomas L. Bradley, Laurel, for appellant.
Luedke & Packwood, Otis L. Packwood, Billings, for respondent.
This is an action for the balance due on a promissory note and involves a summary mortgage foreclosure. Plaintiff appeals from an adverse judgment, and the defendant cross appeals for attorney's fees.
The record discloses that the plaintiff sold 400 aged ewes to the defendant. In payment, the plaintiff took a promissory note for $6,000, secured by a chattel mortgage on the sheep. These two instruments were executed and delivered on September 29, 1959, the maturity date of the note being October 15, 1960. The sheep were not on the defendant's ranch on September 29, 1959, notwithstanding a recitation in the mortgage to the contrary. Rather, some were located in Wyoming and others in Huntley, Montana. Finally, sometime after September 29, 1959, 400 aged ewes were turned over to the defendant, who pastured them on his land along with other sheep belonging to him.
In April 1960, the defendant sold his ranch, including the land on which the sheep were grazing, to Catherine Ciemielewski. Also around this time, the defendant received a wool check amounting to $1281.25, half of which he gave to plaintiff to apply on the note.
Referring once again to the sale of the ranch by the defendant to Mrs. Ciemielewski, the testimony is to the effect that the latter was going to assume defendant's obligation as to the sheep. In this regard, Mrs. Ciemielewski testified that at the time she purchased defendant's ranch she tentatively agreed to buy the sheep, her understanding being that the plaintiff and defendant would contract her to execute a contract. The plaintiff testified that when he was informed that the defendant was selling his ranch to Mrs. Ciemielewski, he did not object to the latter buying the sheep. The defendant testified that he understood the plaintiff and Mrs. Ciemielewski would make the necessary arrangements to relieve him of any further obligation, and with this understanding he left the state on his trucking business.
When nothing was done, Mrs. Ciemielewski lost interest in the sheep and finally told the plaintiff to remove them from her land. In the meantime, the condition of the sheep had deteriorated to the point where many had died and others were wandering around the countryside. Invoking the security clause in the mortgage, the plaintiff caused the sheep, consisting of 321 ewes and 63 lambs, to be rounded-up by the defendant's son. Some of the sheep rounded up and ultimately sold at the sheriff's sale were not part of the original flock of 400 aged ewes covered by the chattel mortgage. On June 14, 1960, the sheep were sold at a sheriff's sale in accordance with the power of sale contained in the mortgage.
The cause was heard before the court, sitting without a jury, and the court found that the mortgage foreclosure sale was illegal and void and entered judgment that the plaintiff take nothing by the action.
Upon this appeal plaintiff assumes the following issues to be raised: (1) whether or not an accord and satisfaction resulted from the purported agreement between the plaintiff, defendant, and Mrs. Ciemielewski; (2) whether or not the plaintiff had reasonable grounds to pursue the summary foreclosure before maturity of the debt and without notice to, or demand on the defendant; and, (3) whether or not the notice of sale was so defective as to make the sheriff's sale invalid. The defendant raises the issue of whether or not he is entitled to attorney's fees as a matter of right.
At the outset, we note that although both briefs are largely devoted to a discussion of the issue of an accord and satisfaction, we do not think the ruling of the district court raised this issue. Reviewing the record, we note in defendant's proposed findings of facts and conclusions of law he suggests an accord and satisfaction as a defense to plaintiff's action. The district court, however, did not adopt this defense. On the contrary, it correctly found as a fact that the agreement to substitute Mrs. Ciemielewski for the defendant in the debt, contracted by virtue of the note and mortgage, was never completed. It is axiomatic in an accord and satisfaction that the satisfaction is the execution of the agreement, unless the agreement is to accept the promise of a settlement in lieu of the original obligation. Barbarich v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 92 Mont. 1, 9 P.2d 797 (1932); R.C.M.1947, §§ 58-502, 58-503. There was no execution of the agreement in the instant case, and there is no evidence in this record to show that the parties agreed...
To continue reading
Request your trial
-
Love v. U.S.
...by the mortgagee or lienholder, including the requirement of notice to the debtor, must be followed strictly. Goggins v. Bookout, 141 Mont. 449, 378 P.2d 212, 214 (1963). Where the mortgagee or lienholder disposes of the property without complying with statutory requirements, "he is guilty ......
-
Love v. U.S.
...by the mortgagee or lienholder, including the requirement of notice to the debtor, must be followed strictly. Goggins v. Bookout, 141 Mont. 449, 378 P.2d 212, 214 (1963). Where the mortgagee or lienholder disposes of the property without complying with statutory requirements, "he is guilty ......
-
W. F. Const. Co., Inc. v. Kalik, 13720
...also Owens v. Hunter, 368 P.2d 753 (Ariz.1962); Hinkle v. Basic Chemical Corp., 163 Colo. 408, 431 P.2d 14 (1967); Goggins v. Bookout, 141 Mont. 449, 378 P.2d 212 (1963); Chopping v. First National Bank of Lander, 419 P.2d 710, (Wyo.1966) cert. 387 U.S. 935, 87 S.Ct. 2062, 18 L.Ed.2d 998; R......
-
Watkins v. Williams
...MCA. Where there is no satisfaction, the original debt is not extinguished and the debtor remains liable for damages. Goggins v. Bookout (1963), 141 Mont. 449, 378 P.2d 212; see also Hetherington v. Ford Motor Co. (1993), 257 Mont. 395, 849 P.2d We affirm the District Court's determinations......