Marseilles Mfg. Co. v. Perry
| Decision Date | 16 October 1901 |
| Parties | MARSEILLES MFG. CO. v. PERRY. |
| Court | Nebraska Supreme Court |
1. A mortgagor of chattels can waive the benefit of the provisions of the statute relating to foreclosures.
2. The provisions of a chattel mortgage that the mortgagee may, upon default, take the property and sell the same at public or private sale are valid, but under such provisions the mortgagee has no right to the possession of the property except for the purpose of foreclosure; and, if he takes the property and holds the same longer than is reasonably necessary for that purpose, he will be held to have elected to take the property, so far as its value will go, in satisfaction of his claim, and, if the value is greater than the amount of his claim, he holds the surplus for the mortgagor.
Error to district court, Clay county; Hastings, Judge.
Action by the Marseilles Manufacturing Company against A. D. Perry. Judgment for defendant, and plaintiff brings error. Affirmed.Wm. M. Clark, for plaintiff in error.
Ambrose C. Epperson, for defendant in error.
This action was tried in the district court of Clay county on appeal from a justice of the peace. It resulted in a verdict and judgment for the defendants, and the plaintiff below has brought the case here for review upon petition in error. The action was to recover the balance due upon promissory notes. The notes had been securedby a chattel mortgage, which, in addition to the ordinary provisions, provided that upon default the mortgagee might take possession of the property, “and remove and sell the same, at either public or private sale, at their option, without notice, and out of the proceeds of said sale retain the amount due on said notes.” The plaintiffs allege that there was default, and “that on the 21st day of August, 1896, they, by their agents, sold the said machine for the sum of $100 to one E. E. Stone, and now give him credit as of that date on the said notes so given by the defendants; * * * that on the 28th day of March, 1898, there will be due and unpaid the sum of $111.55 from the defendants,”--and ask judgment for this balance. It appears that no service was had upon defendant Miles, and the defendant Perry answered, admitting the notes and mortgage alleged in the petition, and alleged that the plaintiff on about the 15th day of February, 1894, took possession of the mortgaged property, but did not advertise the same for sale, and did not sell the same at public auction, as required by law, but converted the same to its own use, and that the property on that date was of the value of $235, and that the amount due on the note at that date was $160, and that the plaintiff unlawfully retained possession of said property and permitted the same to stand without shelter, whereby the same was damaged by rusting and warping, until about August 21, 1896, when the plaintiff sold the same at private sale illegally and without authority...
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