Mark Means Transfer Co. v. Mackinzie

• Decision Date: 10 June 1903
• Citation: 73 P. 135,9 Idaho 165
• Parties: MARK MEANS TRANSFER COMPANY v. MACKINZIE
• Court: Idaho Supreme Court

73 P. 135

9 Idaho 165

MARK MEANS TRANSFER COMPANY v. MACKINZIE

Supreme Court of Idaho

June 10, 1903

ATTACHMENT-MOTION TO DISCHARGE WILL BE SUSTAINED WHEN.-Where it is shown that the suit is based upon a promissory note providing that the express condition of the sale and purchase of the goods for which the note was given is such that the title, ownership or possession does not pass until the note and interest is paid in full, and that the payee has full power to declare the note due and take possession of the goods at any time he may deem himself insecure, even before the specified maturity of same, unless it is shown by the affidavit that the security is beyond his reach or has become valueless through no fault of his, attachment cannot be maintained upon action for purchase price.

(Syllabus by the court.)

ORDER on motion to discharge attachment. Sustained.

Affirmed with costs.

McFarland & McFarland, for Appellants.

The affidavit of Mark Means and James Hayes clearly shows that at the time of the sale the property was delivered to respondent, and that he, respondent, has had possession thereof ever since, and that appellants have not at any time thereafter been in, or claimed possession thereof. This affidavit is uncontradicted. If appellants did not retain possession, how could there be a pledge? Section 3410 of the Revised Statutes defines a pledge: "The lien of a pledge is dependent on possession, and no pledge is valid until the property pledged is delivered to the pledgee or to a pledge-holder." (Idaho Rev. Stats., sec. 3411.) The note declared upon in this action is not a chattel mortgage because it is not acknowledged or verified as required by law. (Laws 1899, p. 121.) It is not a contract for a pledge because possession of the property was not delivered to or retained by appellants. (Idaho Rev. Stats., secs. 3410, 3411.) A vendor's lien will not attach to personal property for its price, unless the vendor retains possession and the property is in his possession when the price becomes payable. (Idaho Rev. Stats., sec. 3443.) A lien or pledge must be of a fixed, determinate character, capable of being enforced with certainty, and dependent on no conditions. (Porter v. Brooks, 35 Cal. 199; 1 Jones on Liens, secs. 3-5.) The above doctrine is upheld by the following cases: Roberts v. Jacks, 31 Ark. 597, 25 Am. Rep. 584; Barnett v. Mason, 7 Ark. 253; Waddell v. Carlock, 41 Ark. 523; Wenz v. McBride, 20 Colo. 195, 36 P. 1105; Glascock v. Lemp, 26 Ind.App. 175, 59 N.E. 342; McDearmid v. Foster, 14 Or. 417, 12 P. 813; McDaugall v. Crapon, 95 N.C. 292. It is essential to the existence of an equitable lien arising from express contract that the property charged be so described that it can be identified. (Chattanooga Nat. Bank v. Rome Iron Co., 102 F. 755; Union Trust Co. v. Trumbull, 137 Ill. 146, 27 N.E. 24; Harned v. Mutual Life Ins. Co., 21 Ky. Law Rep. 750, 53 S.W. 27; Mundy v. Munson, 40 Hun (N. Y.), 304.) An intention to create a change on the property described must be clearly apparent. (Wright v. Ellison, 1 Wall. (U.S.) 16, 17 L.Ed. 555; Arnold v. Porter, 122 N.C. 242, 29 S.E. 414; Bowen v. McCarthy, 127 Ill. 17, 18 N.E. 757; Rider v. Clark, 54 Iowa 292, 6 N.W. 271.) "A condition in a contract of sale that the title to the property is not to vest in the vendee until the performance of some act by him as a condition precedent to the passing of the title may be waived by the vendor, and when so waived, the property will vest in the vendee, notwithstanding he has not performed the conditions." (6 Am. & Eng. Ency. of Law, 474; Holt Mfg. Co. v. Ewing, 109 Cal. 353, 42 P. 435; Fowler v. Bowery Sav. Bank, 113 N.Y. 450, 10 Am. St. Rep. 489, 21 N.E. 172, 4 L. R. A. 145; Smith v. Dennie, 6 Pick. 262, 17 Am. Dec. 368; Green v. Bennett, 23 Mich. 464; Hibernia Ins. Co. v. O'Connor, 29 Mich. 241; West v. Platt, 127 Mass. 367; Oester v. Sitlington, 115 Mo. 247, 21 S.W. 820.) "The waiver may be expressed or implied from the acts of the parties." (State v. Green Tree Brewery Co., 32 Mo.App. 276.)

George W. Tannahill, for Respondent.

The only question for consideration in this case is, Can a contract for the sale of goods be made whereby title remains in the seller, and the seller attach on the note or contract? This question has been considered by this court and passed upon so that there can be no mistake as to the law in such cases. We call attention to Willman v. Friedman, 3 Idaho 734, 35 P. 37: "Where W. sold F. certain real estate upon executory contract. F. going into possession, but title remaining in W. until purchase price is paid by vendee, vendor has such a lien as bars him from resorting to attachment, under the statutes of Idaho for the recovery of unpaid portion of purchase price." (Idaho Rev. Stats., secs. 1887-4303; Idaho Code, secs. 1901, 3294, and notes; Murphy v. Montandon et al., 3 Idaho 325, 29 P. 852; Hill v. Grigsby et al., 32 Cal. 56-59; Vollmer v. Spencer, 5 Idaho 557, 51 P. 608, 609; Fisk v. French, 114 Cal. 400, 46 P. 161.) We call special attention to Harkness v. Russel & Co., 118 U.S. 663, 7 S.Ct. 51, 30 L.Ed. 285.

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.--

This case is here for review on appeal from an order of the district court, Nez Perce county, dissolving and discharging an attachment.

We gather the following facts from the records: On the second day of July, 1901, respondent executed and delivered to appellants the following promissory note:

"Lewiston Idaho July 2nd, 1901.

"No. .

"For value received, on or before the 1st day of Oct. 1901, I promise to pay to the order of Mark Means Transfer Co., of Lewiston, Idaho at Lewiston, Idaho in gold coin, $ 110.00, one hundred ten no-100 dollars with interest at ten per cent. per annum from date until paid.

"If suit is brought on this note I also promise to pay a reasonable amount of attorney's fees to the holder of this note. The makers and endorsers consent that suit may be brought on this note before any justice of the peace to the amount of $ 300. The express condition of the sale and purchase of goods for which this note is given is such that the title, ownership or possession does not pass from the said Mark Means Transfer Co. until this note is paid in full, and that the said Mark Means Transfer Co. have full power to declare this note due and take possession of the goods at any time he may deem himself insecure, even before the specified maturity of same. Given for .

"ALEX MACKINZIE."

On the fourth day of August, 1902, appellants filed their complaint in the district court of Nez Perce county, demanding payment, etc.

On the fifteenth day of August, 1902, a writ of attachment was issued by the clerk of the district court of Nez Perce county and delivered to the sheriff of said county for service, and on the nineteenth day of August, 1902, the sheriff executed said writ by levying upon certain property of respondent, to wit, one McCormick binder, fifteen tons of grain-hay, five acres of growing onions, and an undivided one-third interest in and to one hundred and eighteen acres of growing flax, all on the farm of respondent in said county of Nez Perce, and placed a keeper in charge of the property attached. The attachment was issued, based upon the affidavit of James Hayes, who, with Mark Means, constitutes the firm of Mark Means Transfer Company. The affidavit follows:

"AFFIDAVIT FOR ATTACHMENT.

"James Hayes, being first duly sworn, deposes and says that he is one of the plaintiffs named in the above-entitled action, and that he makes this affidavit for himself and copartner, Mark Means; that the above-named defendant is indebted to said plaintiffs in the sum of one hundred and ten dollars ($ 110), with interest thereon, at the rate of (10) per cent per annum, from the second day of July, 1901, and the further sum of twenty-five dollars ($ 25.00) attorney's fees, over and above all legal setoffs and counterclaims, upon a contract for the direct payment of money, to wit, upon a promissory note, dated July 2, 1901, for the sum of one hundred and ten dollars ($ 110), with interest at ten (10) per cent per annum, from date thereof, payable on or before the first day of October, 1901, and providing for the payment of a reasonable sum as attorneys' fees in case suit or action is instituted to collect the same, or any part thereof, and that the sum of $ 25 is a reasonable attorney's fee herein; and that the payment of said sums or either of them or any part thereof has not been secured by any mortgage or lien upon real or personal property or any pledge of personal property.

"That this attachment is not sought and this action is not prosecuted to hinder, delay or defraud any creditor or creditors of said defendant.

"JAMES HAYES.

"Subscribed and sworn to before me this 15th day of August, 1902.

"P. E. STOOKEY,

"Clerk District Court."

Thereafter respondent gave notice of his intention to ask the court to discharge the attachment on a day certain fixed in the notice on the ground "that the attachment was issued in violation of subdivision 1 of section 4303, Revised Statutes of Idaho in this: That the note sued on in this action is a title note, is and was secured by the machinery and property on which the note was given, and that no proceedings have been had to exhaust said security."

In support of this motion the affidavit of Alex Mackinzie respondent, was filed. Subdivision 1 of section 4303 says: "That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness over and above all legal setoffs or counter-claims, and whether upon a judgment or upon a contract for the direct payment of money and...