Mills v. Glennon

• Decision Date: 23 February 1885
• Citation: 2 Idaho 105,6 P. 116
• Parties: MILLS v. GLENNON
• Court: Idaho Supreme Court

6 P. 116

2 Idaho 105

MILLS v. GLENNON

Supreme Court of Idaho

February 23, 1885

ACTION ON ACCOUNT.-In an action for a balance of account on a general account for labor done, money paid and goods sold it is not necessary to set forth in the complaint the amount of each separate item.

SAME.-The account constitutes but one cause of action and the statement of general balance due is sufficient.

VOID SALE-MORTGAGED CHATTELS-EVIDENCE-ORAL CONSENT TO SALE.-Under the statutes of Idaho making the willful sale of property upon which there is a chattel mortgage, without the written consent of the mortgagee, larceny, and declaring the sale void, evidence of an oral consent of the mortgagee to the sale of such property is admissible in evidence to explain the intention of the mortgagor in making such sale.

SECONDARY EVIDENCE-TRANSCRIPT OF LOST ACCOUNT-BOOK.-True and correct transcripts or original account-books with aliunde as to the items thereof may be admitted in evidence when the original books have been accidentally destroyed by fire.

(Syllabus by the court.)

APPEAL from District Court, Boise County. Remanded with instructions to modify judgment.

Cause remanded; costs of appeal equally divided between parties.

George Ainslie and James H. Hawley, for Appellants.

The court erred in overruling defendants' demurrer to the complaint. The common counts cannot all be united in one count as one cause of action, without any specification of the sums due upon each cause. (Buckingham v. Waters, 14 Cal. 147; McCarty v. San Francisco etc. R. R Co., 41 Cal. 17; White v. Cox, 46 Cal. 169.) A complaint for money had and received which fails to allege a demand is bad on demurrer. (Greenfield v. Steamer Grinnell, 6 Cal. 68.) The court erred in admitting in evidence plaintiff's books of account. To be admissible they must be the original books and not copies, and the entries must have been made contemporaneous with the delivery of the goods, and by the person whose duty it was to make them. (1 Greenleaf on Evidence, p. 173, and following sections 117-120, and notes 4 on pp. 173 and 174, and 1 and 1, pp. 174 and 175; also pp. 176 and 177.) Where a chattel mortgage is given on personal property, the legal title to the property vests in the mortgagee, and no sale of such property by the mortgagor is valid unless the mortgagee consents in writing to such sale, and the admission of verbal consents by one of the mortgagees is contrary to law. (Idaho Gen. Laws, 11th Sess., 1880-81, p. 307, title, "Chattel Mortgages," sec. 8; Jones on Chattel Mortgages, secs 426, 699, 700.) And the mortgagee may maintain trespass or trover for the goods against anyone who takes or converts them, etc., even against the mortgagor himself after a forfeiture. (Jones on Chattel Mortgages, secs. 442, 444 446-448, 706; Heyland v. Badger, 35 Cal. 404; Wright v. Ross, 36 Cal. 414.) And in a proceeding to foreclose, the mortgage lien will be enforced against those holding under the mortgagor with record notice. (Apperson v. Moore, 30 Ark. 56, 21 Am. Rep. 170; Arques v. Wasson, 51 Cal. 620, 21 Am. Rep. 718; Jones on Chattel Mortgages, secs. 454, 460, 466, 484.) Parol evidence is inadmissible if it contradicts the the terms of the mortgage. (Jungeman v. Bovee, 19 Cal. 355; Bowman v. Ainslie, 1 Idaho, 644; Vincent v. Larson, 1 Idaho 241.)

Huston & Gray and Prickett, for Respondents.

The books of account were properly admitted; it was the best evidence, and was explained by the testimony. (Severance v. Lombardo, 17 Cal. 57.) All the acts of the mortgagor in relation to the sale were within his knowledge, and were, and still are, acquiesced in by him. The vendee has been in no way damnified. His title to the property in his possession, nor his right to possession have never been questioned. Where, then, we ask, is the ground upon which he asks to have the sale invalidated? Why, simply that the consent of the mortgagee to the sale was not in writing. We cite the following authorities in support of our position: Jones on Chattel Mortgages, secs. 456, 457, 660, 661; Pratt v. Maynard, 116 Mass. 388; Stafford v. Whitcomb, 8 Allen, 518; Gage v. Whittier, 17 N.H. 312; Patrick v. Miserve, 18 N.H. 300; Brandt v. Daniels, 45 Ill. 453. Although a sale of the mortgaged property by the mortgagor without the consent in writing of the mortgagee be prohibited by statute. (Jones on Mortgages, sec. 486; Gage v. Whittier, 17 N.H. 312; Roberts v. Crawford, 54 N.H. 532.) The authority in the mortgagor may be inferred. Such authority depends upon the intent of the parties. (Jones on Chattel Mortgages, sec. 457.) The sale of the mortgaged property by the mortgagor with the mortgagee's consent discharges the mortgage lien thereon. (Jones on Chattel Mortgages, sec. 661; Conkling v. Shelley, 28 N.Y. 360, 84 Am. Dec. 348; Brandt v. Daniels, 45 Ill. 453; Jones on Chattel Mortgages, sec. 465.)

BUCK J. Morgan, C. J., and Broderick, J., concurring.

OPINION

BUCK, J.

This action sets forth in the complaint two causes of action: 1. A balance on account; and 2. Damages for breach of contract. It was tried by the court at the August term of the district court, 1884. Judgment was rendered for the plaintiff for the sum of $ 1,638.79. The defendants made a motion for a new trial, which was overruled; and from the order overruling the same, and from the judgment, take this appeal, and bring the cause to this court upon a statement of the case.

The first assignment of error is that the court erred in overruling the demurrer to the complaint. The demurrer is both general and special, but the attorney urged upon the argument but one objection, namely, that in the first count in the complaint several causes of action are improperly united, and that the same is ambiguous and uncertain, and mixed together without any statement or averment of the amount claimed to be due on each one separately. That portion of the complaint objected to for these reasons is as follows: "That the said defendants are indebted to the said plaintiff in the sum of $ 420.11, for balance of account for money loaned, services performed by plaintiff for defendants, for grain and various articles of farm produce, and for money paid for defendants' use--the whole done, furnished, and performed at the request of the defendants between January 1, 1881, and April 1, 1884; that the whole aggregate value of which items is the sum of $ 1,043.73, no part of which has been paid, except $ 623.65, the said balance of $ 420.11 still being unpaid." The objection to this pleading set out in appellants' brief and urged in the argument, is "that the common counts cannot all be united in one count as one cause of action without any specification of the sums due upon each cause." Section 231 of the Code of Civil Procedure provides that several causes of action may be united in the same complaint, in several instances specified therein. Among these are causes arising upon contract, express or implied; but the several causes must be separately stated. The allegation objected to set out a balance of account, specifying, by brief mention, the character of the different items composing the account. Section 251 of our code provides as follows: "It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after demand thereof, in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular." This provision was evidently intended to relieve the pleader from the necessity of specifying the exact amount of each separate item, and amply protects the adverse party from surprise at the trial. The gravamen of the allegation is the failure of the defendants to pay the balance alleged to be due on the account. We think it constitutes but one cause of action, and was well pleaded. (1 Estee on Pleading and Practice, 1st ed., 374, note 5, and cases cited; Guernsey v. Carver, 8 Wend. 492, 24 Am. Dec. 60, and note; Stevens v. Lockwood, 13 Wend. 644, 28 Am. Dec. 492, and note.)

The objection to the second count of the complaint was waived on the argument. The assignment of errors brings up two important questions of evidence. The first is an exception to the ruling of the court in admitting oral evidence of the consent of the mortgagee of a chattel mortgage to the transfer of the mortgaged property by the mortgagor. General Laws of Idaho, eleventh session, 1880-81, page 307, title "Chattel Mortgages," is as follows: "If the mortgagor of any...