H. E. Wright & Co. v. Douglas

• Decision Date: 29 September 1919
• Docket Number: 961
• Parties: H. E. WRIGHT & CO. v. DOUGLAS
• Court: Wyoming Supreme Court

183 P. 786

26 Wyo. 305

H. E. WRIGHT & CO. v. DOUGLAS

No. 961

Supreme Court of Wyoming

September 29, 1919

ERROR to the District Court, Weston County; HON. ERNEST C. RAYMOND Judge.

Action by R. S. Douglas against H. E. Wright & Co. to enjoin the foreclosure of a chattel mortgage by notice and sale. From a judgment granting a perpetual injunction, the defendant brings error.

Affirmed.

H. S Ridgely and C. E. Wampler, for plaintiff in error.

The Court erred in denying defendant's motion for judgment on the pleadings; the statute (4401 C. S.) provides that allegations of new matter in the answer not controverted by a reply shall be taken as true; the answer alleged an insufficiency of tender, and no reply was filed; there was no tender of gold coin, nor was there a tender of attorney's fees stipulated for in the notes; there was error in overruling defendant's objection to the introduction of any testimony in the case; the judgment is not sustained by the evidence, and is contrary to law; the tender was not kept good (38 Cyc. 158); a check is not sufficient tender (Lewis v. Larsen, 45 Wis. 353; Smith v Merchants' Bank, 14 O. Cir. Ct. 199); it was not shown that Keeler Bros. had authority to accept payment for the holder of notes at Denver; the rate of attorney's fees stipulated for was reasonable (Florence Oil Co. v. Gas Co., 55 Colo. 378, 135 P. 454); the holder was entitled to payment in gold coin, or the equivalent thereof in Denver, Colorado.

David A. Fakler and Jesse G. Northcut, for defendant in error.

The tender was sufficient; no objection was made to the character of the payment tendered, so the point was waived (Boothroyd v. Board, 43 Colo. 435, 97 P. 255; Irrigation Co. v. Rogers, 22 Colo. 445, 45 P. 423). Of course it must appear that the drawer of the check had funds in the depository bank to meet it (Hunt on Tender, Section 83); the tender stopped interest (Dooley v. Smith, 13 Wis. 608); there was no stipulation for interest at 12% after maturity of the notes; the notes were payable in New York or at Denver at the option of the holder; the holder demanding payment at Denver, and was not entitled to New York exchange; the draft tendered in payment of the notes at maturity was for the full amount of principal and interest due; the lien was discharged by tender, and it was unnecessary to show that the tender was kept good (38 Cyc. 159; McPherson v. James, 69 Ill.App. 377; Daugherty v. Byles, 41 Mich. 61; Stewart v. Brown, 48 Mich. 383); the case is of an equitable nature, and Sec. 4470 C. S. does not apply; there was no justification for placing the notes in the hands of an attorney for collection, and no attorneys' fees should be recovered.

BEARD, CHIEF JUSTICE. POTTER, J., and BURGESS, District Judge, concur. BLYDENBURGH, J., being unable to sit, HON. JAMES H. BURGESS, Judge of the Fourth Judicial District, was called in and sat in his stead.

OPINION

BEARD, CHIEF JUSTICE.

This is an action brought by the defendant in error, Robert S. Douglas, against the plaintiff in error, H. E. Wright & Company, to enjoin the foreclosure by notice and sale of a certain chattel mortgage given by Douglas to one Frank W. Keeler. A temporary injunction was issued, and on final hearing was made perpetual. Wright & Company bring error.

Douglas alleged in his petition, in substance:

1. That on July 10, 1917, he executed and delivered to Frank W. Keeler, his two promissory notes, one for $ 5,000.00, and one for $ 4,259.18, each due six months after date, with interest at 5% per annum from date until paid, and payable at the option of the holder at the Banking House of Keeler Brothers, in Denver, Colorado, or at the National Bank of Commerce, in the City and State of New York.

2. That to secure the payment of said notes he executed and delivered the mortgage in question.

3. That before the maturity of said notes he caused to be tendered the full amount due on said notes, namely, the sum of $ 9,259.18, as principal, and the further sum of $ 236.62, in all the sum of $ 9,495.80, at the Banking House of Keeler Brothers, at Denver, Colorado, the place selected by the holder of said notes, where payment should be made, which said Keeler Brothers refused to accept, to surrender said notes and satisfy and cancel the mortgage securing their payment.

4. That thereafter, and on February 18, 1918, he again caused to be tendered to H. E. Wright & Company, the defendants, the sum of $ 9,495.80 and the further sum of $ 120.37, which latter amount defendant claimed as interest since the maturity of the notes, which tender so made defendants refused to accept.

5. That notwithstanding said tender as aforesaid, defendant wrongfully began foreclosure proceedings, and have advertised a "Notice of Chattel Mortgage Foreclosure", giving notice that on March 15, 1918, it would sell at public auction all of the cattle described in said mortgage. (A copy of the notice is set out in the petition, and states:)

"The first publication of this notice shall be on Thursday, to-wit: the 21st day of February, A. D. 1918," and signed,

"H. E. Wright & Company,

"Denver, Colorado.

"Present Holder of Mortgage."

6. That unless restrained by order of the court, the defendant will proceed to sell the property as advertised.

7. That he stands ready and willing to pay the amount due on said notes on January 10, 1918, and as tendered, and to do all things which he offered to do, and tendered, at any time prior to the bringing of this action.

For answer, defendant pleaded in substance, that the notes by their terms drew 5% interest per annum from date until maturity; and that by the terms of the mortgage the notes should draw interest at 12% per annum after maturity until paid. Denied that plaintiff tendered before the maturity of the notes the full amount due thereon at the Banking House of Keeler Brothers; denied that plaintiff at any other time tendered the full amount due on said notes at any place. Denied that plaintiff tendered or caused to be tendered the full amount due on said notes or that he caused to be tendered at any time the sum of $ 9,495.80; but state that about the date of maturity of said notes plaintiff tendered in full payment of the principal and interest thereon at the Banking House of Keeler Brothers at Denver, Colorado, a draft drawn by some bank in Nebraska on a bank in Omaha for $ 9,495.80. That by the terms of said notes they were payable in gold coin. Denied that plaintiff, at any time, tendered or caused to be tendered, the full amount due on said notes, in such gold coin. Answering paragraph 4 of the petition, defendant admitted each and every allegation therein contained; and further alleged that said notes contain an agreement to pay 15% additional as an attorney's fee if placed in the hands of an attorney or collected by an attorney, with or without suit; that prior to the tender mentioned in paragraph 4 of the petition, defendant had placed said notes in the hands of its attorney for collection, that said attorney had undertaken the collection of said notes and had caused the "Notice of Chattel Mortgage Foreclosure", set out in paragraph 5 of the petition, to be published as alleged in said paragraph 5. Answering paragraph 5 of the petition, defendant admitted each and every allegation therein contained, except it denied that said foreclosure proceedings were wrongfully begun.

Defendant filed a motion for judgment on the pleadings on the ground that new matter constituting a complete defense was pleaded in its answer, to which no reply was filed. The motion was denied, and that ruling is assigned as error. What is claimed to be new matter is stated in the motion as follows:

"That as set forth in paragraph 3 of the answer, the notes secured by the chattel mortgage described in the petition were and are, by their terms, payable in gold coin of the United States of America, and that as set forth in said answer, the plaintiff did not pay, and did not offer to pay in such gold coin at, or prior to the maturity of said notes, the amount due thereon; that as set forth in paragraph 4 of the answer, the plaintiff did not, subsequent to the maturity of said notes, tender the full amount due thereon according to the terms thereof, all as set forth in said answer and the exhibits attached thereto, and made a part thereof."

For the purpose of deciding the correctness of the court's ruling on the motion, it is necessary to consider the answer to the tender of ...