Hopkins v. Hemsley

• Decision Date: 05 May 1933
• Docket Number: 5863
• Citation: 53 Idaho 120,22 P.2d 138
• Court: Idaho Supreme Court
• Parties: MARY M. HOPKINS, Respondent, v. JOHN HEMSLEY and BERTHA HEMSLEY, Defendants; SPERRY ELEVATOR & STORAGE CO., Appellant

22 P.2d 138

53 Idaho 120

MARY M. HOPKINS, Respondent, v. JOHN HEMSLEY and BERTHA HEMSLEY, Defendants; SPERRY ELEVATOR & STORAGE CO., Appellant

No. 5863

Supreme Court of Idaho

May 5, 1933

CHATTEL MORTGAGES-REMOVAL OF GOODS-RIGHTS OF PARTIES-NOTICE-RECORDING OF MORTGAGE-CONFUSION OF GOODS-SEGREGATION.

1. Where mortgagee gave no written consent to shipment of mortgaged grain out of state, although mortgagee knew thereof, mortgagee did not lose lien (I. C. A., sec 44-1007).

2. Where only evidence regarding whether mortgagee consented to mortgagor's sale of mortgaged grain was given by purchaser's agent and mortgagor and mortgagee, finding that mortgagee retained lien held proper (I. C. A., sec 44-1016).

3. Statutes relating to chattel mortgages contemplate possession of mortgaged chattels by mortgagor or others, where mortgage is properly authenticated and filed, but with preservation of mortgagee's lien (I. C. A., secs. 44-1005, 44-1007, 44-1008, 44-1016).

4. On motion for nonsuit, all reasonable inferences are to be resolved in favor of plaintiff.

5. Nonsuit is properly denied, unless reviewing court finds there were no reasonable inferences supporting finding for plaintiff.

6. Mortgagee's consent which waives mortgage lien is consent to mortgagor's sale of mortgaged chattels, not consent to mere shipment or delivery (I. C. A., sec. 44-1016).

7. A "waiver" is the intentional relinquishment of a known right.

8. Evidence sustained finding that mortgagee did not consent to or ratify mortgagor's sale of mortgaged grain, so as to waive mortgage lien thereon, notwithstanding mortgagee consented to shipment of grain out of state, and, after its shipment, received part of purchase price from purchaser (I C. A., secs. 44-1007, 44-1016).

9. Burden held on converter to show proper segregation of commingled grain, including converted grain.

10. Alleged converter of mortgaged grain held chargeable with notice and knowledge of properly recorded crop mortgage covering grain.

11. Where there is sufficient evidence, though conflicting, to sustain judgment, judgment must be affirmed.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Action to foreclose crop mortgage and for conversion. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

C. L. Hillman, and DeVine, Howell & Stine and Lewis J. Wallace, for Defendant Sperry Elevator & Storage Company, Appellant.

Consent by Mortgagee. Where a mortgagee consents to a sale of the mortgaged chattels by the mortgagor, he waives the lien of his mortgage, and the purchaser takes title free of the mortgage lien. (A. J. Knollin & Co. v. Jones, 7 Idaho 466, 63 P. 638; Bellevue State Bank v. Hailey Nat. Bank, 37 Idaho 121, 215 P. 126; First Security Bank of Pocatello v. Zaring Farm & Livestock Co., 51 Idaho 700, 10 P.2d 303.)

Verbal Consent by Mortgagee. A chattel mortgagor may sell mortgaged property absolutely with mortgagee's oral consent. (Reno v. A. L. Boyden Co., 115 Cal.App. 697, 2 P.2d 214; Mitchell v. Mason, 184 Ark. 1000, 44 S.W.2d 672; Paska v. Saunders, 103 Vt. 204, 153 A. 451.)

Implied Consent by Mortgagee. A mortgagee's consent to sale of mortgaged property, thereby waiving lien, may be shown by express words, and also by implication from course of conduct. (Smith v. Washburn-Wilson Seed Co., (1925) 40 Idaho 191, 232 P. 574; Western Seed Marketing Co. v. Pfost, (1927) 45 Idaho 340, 262 P. 514.)

C. W. Poole, for Respondent.

One who purchases mortgaged crops from the mortgagor, or removes or appropriates the same, without the consent of the mortgagee, is liable to the mortgagee in conversion for the reasonable value of such crops, to the extent of the amount due on the mortgage debt. (Adams v. Caldwell Milling & Elevator Co., 33 Idaho 677, 679, 197 P. 723; Bank of Roberts v. Olaveson et al., 38 Idaho 223, 228, 221 P. 560; Western Seed Marketing Co. v. Pfost, 45 Idaho 340, 262 P. 514; First Security Bank v. Zaring Farm & Livestock Co., 51 Idaho 700, 705, 10 P.2d 303; Nohrnberg v. Boley, 42 Idaho 48, 60, 246 P. 12; Twin Falls Bank & Trust Co. v. Weinberg, 44 Idaho 332, 342, 257 P. 31, 54 A. L. R. 1527.)

Where a confusion of the goods of two owners is caused by the wrongful act of one the burden is upon him to prove the identity or quantity of the commingled property belonging to him. (5 R. C. L., pp. 1051, 1052; 12 C. J., p. 498; Mahoney v. Citizen's Nat. Bank, 47 Idaho 24, 30, 271 P. 935; Servel v. Corbett, 49 Idaho 536, 290 P. 200.)

GIVENS, J. Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

Defendants Hemsley and wife gave respondent a chattel mortgage on certain crops to be grown on respondent's land, which mortgage was duly filed. The crops were, with respondent's knowledge, harvested, and delivered by Hemsley to appellant, Sperry Elevator and Storage Company, hereafter referred to as appellant company, and shipped by them to their warehouse in Ogden, Utah. Respondent did not know, however, until December, that the crops had been sold by Hemsley to appellant company, whereupon, in the succeeding January she promptly brought this action for their conversion and foreclosure of the chattel mortgage, and from a denial of a motion for nonsuit, and judgment in her favor, this appeal is taken.

Appellant contends respondent consented to, and by her conduct ratified, the sale, and that there was no conversion of the crops in question.

Section 44-1007 provides that shipment of mortgaged property (chattel) out of the county where the mortgage is filed does not affect the lien thereof unless written consent is given, in which event the lien is in abeyance until a copy of the mortgage is filed in the county, into which the goods are shipped, or in the office of the Secretary of State. No written consent was given, so respondent did not lose her lien by such shipment. (Young v. Boise Payette Lumber Co., 45 Idaho 671, 264 P. 873.)

Section 44-1016, I. C. A., provides that a sale of the mortgaged chattels does not deprive the mortgagee of the mortgage lien unless consent be shown, written or proved by a preponderance of other evidence than of the interested parties. Appellant concedes there was no written consent, but urges that the delivery of the crops to appellant company for shipment out of the state, under the circumstances disclosed by the record, amounted to at least implied consent of the sale. The only evidence relative to consent was given by appellant's former agent who bought the wheat for appellant company, and the mortgagor and mortgagee, hence there is no evidence of other than interested parties, except we take the evidence of respondent as outside the ban of the statute because in the nature of admissions against interest.

There was no evidence of a substitution of the mortgagor's bare promise for the mortgage, nor was there evidence that the mortgagee accepted the mortgagor's promise to pay part of the proceeds for a release.

Valley Bank v. Hillside Packing Co., 91 Cal.App. 738, 267 P. 746, was based entirely on sec. 2972 of the Civil Code of California:

"The lien of a mortgage on a growing crop continues on the crop after severance, whether remaining in its original state or converted into another product, so long as the same remains on the land of the mortgagor," which we do not have and never did have, and which is expressly contrary to sec. 44-1007, I. C. A.

Even a cursory consideration of our statutes relative to chattel mortgages indicates that possession by the mortgagor or others, where the mortgage is properly authenticated and filed, is contemplated, but the lien preserved. (Secs. 44-1005, 44-1008, I. C. A.; Meyer v. Munro, 9 Idaho 46, 71 P. 969; Guthrie v. Ensign, 36 Idaho 673, 213 P. 354.) Therefore possession, even prior to the enactment of sec. 44-1016 in 1931, was not controlling, and under sec. 44-107 diligence is of no moment, because if consent to the sale be given, the lien is lost; if not given, the lien persists because of the statute, and cases decided in this state prior to 1931, when the provisions of sec. 44-1016 as to the proof necessary to show consent, became law, or in jurisdictions where no such requirement prevails, are of course not in point.

On motion for nonsuit, all reasonable inferences are to be resolved in favor of plaintiff, and unless we can say there were none in her favor, the nonsuit was properly denied. (Maryland Casualty Co. v. Boise Street Car Co., 52 Idaho 133, 11 P.2d 1090; First Nat. Bank of Hagerman v. Stringfield, 40 Idaho 587, 235 P. 897; Independent Irr. Co., Ltd., v. Baldwin, 43 Idaho 371, 252 P. 489; Porter v. Pincock, 44 Idaho 235, 256 P. 93; Scrivner v. Boise Payette Lumber Co., 46 Idaho 334, 268 P. 19.)

Conceding that under the 1931 amendment statements, acts or evidence by the mortgagee would be sufficient, they must show consent to a sale, not mere shipment or delivery, as pointed out in appellant's own authorities.

As said in Stockyards Nat. Bank v. B. Harris Wool Co., 316 Mo. 426, 289 S.W. 623:

"The evidence is conclusive . . . . and uncontradicted that plaintiff (mortgagee) failed to look after its mortgage security, allowing Wrathall (mortgagor) to clip the wool to sell or consign it after it was clipped, and to receive advances thereon." (Italics ours.)

In Ramsey v. California Packing Corp., 51 Cal.App. 517, 201 P. 481, the court said:

"Emerson admitted that he knew that certain portions of the crop had been removed from the premises and sold, and that the mortgagees intended to remove and sell the remainder; yet . . . . took no steps to prevent such removal and sale." (Italics ours.)

Let us take the testimony of respondent quoted by appellant in...