Lomax v. Walk

• Decision Date: 13 August 1898
• Parties: LOMAX v. WALK.
• Court: Oregon Supreme Court

54 P. 199

33 Or. 385

LOMAX v. WALK.

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Union county; Stephen A. Lowell, Judge.

Suit by Leroy Lomax against G.M. Walk. From an adverse decree plaintiff appeals. Reversed.

F.S Ivanhoe, for appellant.

J.T Baker, for respondent.

BEAN, J.

This is a suit for the dissolution of an alleged partnership, and for an accounting. A statement of the facts sufficiently full and clear to exhibit the questions presented on this appeal is that on July 3, 1893, the plaintiff and defendant being equal owners of a band of about 2,500 head of sheep, the plaintiff mortgaged his interest therein to the defendant to secure the payment of a promissory note for $2,650, due 11 months after date. The mortgage provides that, if the defendant "at any time deem himself insecure," it shall be lawful for him to take possession of the property therein described "and the same to sell and dispose of at public or private sale, as he may see fit, and out of the proceeds arising from such sale to retain and pay" the amount due on such promissory note, the costs and expenses and reasonable charges for making such sale, together with a reasonable attorney's fee, and the overplus, if any, pay over to the plaintiff. On September 3, 1893, the defendant under the provisions of the mortgage, took possession of the plaintiff's interest in the band of sheep referred to, and retained possession thereof until the maturity of the note, some nine months thereafter, when he proceeded to advertise and sell the mortgaged property at public sale in the manner provided for the sale of personal property on execution. At the time he took possession, in September, 1893, the property covered by the mortgage was worth, according to the unchallenged findings of the referee, the sum of $3,287, but before the maturity of the note, and before the sale thereof, the sheep market had so depreciated that it brought at such sale only $2,800; and the sole question on this appeal is whether the defendant should account to the plaintiff for the value of the mortgaged property at the time he took possession, or at the date of the sale, less the cost and expense of keeping the property in the meantime.

The validity of the mortgage, and the right of the defendant to take possession of the mortgaged property before the maturity of the note, are conceded by the plaintiff. His sole contention is that defendant, having exercised the right given him, and taken possession of the property, ought to have...