Lormer v. Allyn

• Court: Iowa Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Lormer v. Allyn, 64 Iowa 725, 21 N.W. 149 (Iowa 1884)
• Decision Date: 24 October 1884
• Parties: LORMER v. ALLYN ET AL

21 N.W. 149

64 Iowa 725

LORMER v. ALLYN ET AL

Supreme Court of Iowa, Dubuque

October 24, 1884

Appeal from Cerro Gordo District Court.

THE plaintiff, Mary E. Lormer, brought this, her action in attachment, against the defendant, Allyn, and garnished the defendant, Kirk. The garnishee answered, showing that he was in possession of certain personal property, as mortgagee of Allyn. One Barnard intervened, claiming certain accounts which accounts both the plaintiff and Kirk claim passed to the latter under the mortgage. The intervenor also claimed certain money collected on accounts of like character. There was a trail to a jury, and verdict and judgment were rendered for the intervenor. The plaintiff appeals.

AFFIRMED.

Blythe & Markley, for appellant.

Glass & Hughes, for appellee.

OPINION

ADAMS J.

On the sixth day of September, 1882, the defendant, Allyn, was doing business as a grocer, and on that day he executed a chattel mortgage to Kirk, wherein he conveyed his stock of groceries. The mortgage also purported to convey "all books of account and rights of credits arising out of said business." At that time Allyn's books contained accounts against customers, and afterwards other accounts accrued for goods sold, and they were charged in the books in like manner. On the twenty-second day of September of the same year, the plaintiff, having a claim against Allyn, and believing that Kirk's mortgage covered more property than was necessary to enable him to collect his claim, and desiring to reach the accounts which accrued to Allyn before and after the execution of the mortgage, brought this action in attachment, and garnished Kirk as mortgagee of the accounts. On the day after the garnishment, Allyn assigned to Barnard, who is also said to be a creditor, all his claims and demands against every person growing out of the grocery business.

The court instructed the jury, in substance, that the accounts which accrued subsequently to the execution of the mortgage were not covered by it, and passed by the assignment to Barnard, the intervenor. The principal question arises upon this instruction. We do not determine whether in any event the proper mode of reaching the accounts was by garnishing the mortgagee. We have reached the conclusion that the court was correct in holding that the subsequently accruing accounts were not covered by the mortgage, and, if we are correct in this, it is immaterial whether the plaintiff's mode of proceeding was proper or not.

The plaintiff's position is, that "rights of credits arising out of the business" must be deemed to include those that should thereafter arise. But the general rule is that a chattel mortgage will not be deemed to cover after-acquired property, unless the intention that it should is clearly expressed. Jones on Chattel Mortgages, § 160. Looking at the description in question, we cannot say that the intention is clear to...