Moody v. Sindlinger
| Decision Date | 10 May 1915 |
| Docket Number | 4049 |
| Citation | 149 P. 263,27 Colo.App. 290 |
| Parties | MOODY et al. v. SINDLINGER. |
| Court | Colorado Court of Appeals |
Error to District Court, Denver County; John H. Denison, Judge.
Action by A.W. Sindlinger against J.P. Moody and another. There was a judgment for plaintiff, and defendants bring error. Reversed and remanded.
George J. Humbert, of Denver (H.H. Whittier of Denver, of counsel), for plaintiffs in error.
W.W Anderson, of Denver, for defendant in error.
On December 9, 1909, A.W. Sindlinger, defendant in error and plaintiff below, hereinafter called plaintiff, borrowed of J.P. Moody, one of the plaintiffs in error and a defendant below, the sum of $12 for one month on his promissory note secured by a chattel mortgage on one 4 1/2-foot flat-top oak desk, one 4-foot low roll-top oak desk three swivel chairs five common chairs, one worn brussels carpet, containing about 22 yards, and all office furniture, equipment etc., then had and used at room 15, 1624 Curtis street, Denver, Colo. Moody himself prepared the mortgage for execution, and filed the same for record. The note was made for the payment of $15, and whether the additional $3 represent the expenses of preparing and filing the papers for record, advanced interest, a bonus, or something else, is not disclosed by the record. The note was not introduced in evidence; but we infer from the evidence that plaintiff was required to pay $1 per month for the use of the money, and paid the costs of two extensions hereinafter mentioned. The property covered by the mortgage was removed by plaintiff, with the consent of Moody, from room 15, 1624 Curtis street, to offices on Champa street. On January 7, 1911, between 5 and 6 o'clock p.m., Moody and his codefendant, Grutzmacher, an expressman, the other plaintiff in error herein, entered the unlocked office of plaintiff on Champa street, and, in his absence, removed therefrom certain property, including a certain roll-top desk, in which were locked one Oliver typewriter and business and private papers of the plaintiff, all of which property, with the exception of said papers, which Moody claims to have returned, Moody sold, after due advertisement, in the foreclosure of his mortgage. For this taking, carrying away, and conversion of said property plaintiff instituted this action, alleging in his complaint malice on the part of the defendants, and praying judgment in the sum of $1,500 for the damages alleged to have been suffered, and that a body execution be issued thereon. The defendants in their answer denied the material allegations of the complaint, and for a further defense alleged that the property in question was taken under and by virtue of the provisions of a chattel mortgage from plaintiff to Moody, which had matured upon default in the payment of a promissory note for which it was given to secure. The case was tried in the county court of the city and county of Denver, and resulted in a judgment in favor of the plaintiff in the sum of $247.50, and costs, from which an appeal was taken to the district court of said city and county, and the case tried there to a jury of six, who returned a verdict as follows:
Upon this verdict judgment for the amount thereof was entered against both defendants, and it was ordered that plaintiff have execution against the body of defendant Moody, and that he (Moody) be committed to the jail of the city and county of Denver for a term not exceeding three months, to be released, however, upon the payment of the judgment so rendered against him.
At the trial plaintiff's principal contentions were that the mortgage, by reason of a certain extension thereof, did not mature until January 9, 1911, two days after the property was taken in foreclosure, and that the desk and its contents, taken by defendants, were not covered by the mortgage.
As to the first of these contentions, plaintiff testified that on or about August 16, 1910, he paid to a Mr. Stempe, an agent of Moody, the sum of $2 for an extension of the mortgage, and received a receipt therefor. Continuing, he said:
On cross-examination he admitted that he never saw Moody about the matter, and that he never examined the records to learn to what date the mortgage had been extended.
Defendants introduced in evidence a certified copy of the record of an extension, which was acknowledged and filed for record August 6, 1910, and extended the mortgage to and including November 9, 1910. Moody testified that this was the last extension made, and it was the only written evidence of an extension received or offered at the trial. This instrument, therefore, should control as to the date of the maturity of the mortgage as extended, as there was no evidence of fraud, accident, or mistake to justify its overthrow or contradiction by the mere oral testimony of the plaintiff.
The mortgage, then, having matured or become due November 9, 1910, as evidenced by this extension, defendant Moody was at liberty to foreclose in a proper manner and in accordance with the terms of the statute any time after this date; and it now remains to be determined whether or not the record shows that he exceeded his rights in pursuing his remedy.
The record is crowded with evidence to the effect that soon after the note as extended matured Moody informed plaintiff that he could not further extend it or carry it longer; that the amount was so small that it cost him more to look after it than it was worth; that he and his employés had made repeated written and verbal demands for the settlement of the amount due, and, though none of the principal had been paid, and some of the interest had lapsed, he offered to accept $10 and release everything; that on Saturday, the 7th day of January 1911, 2 months, lacking 2 days, after the maturity of the note, he, in the absence of the plaintiff, left notices at his office that it would have to be settled on that day. Late in the afternoon he, becoming fearful that the plaintiff had not received the notices, sent an employé to plaintiff's home, and informed him that the goods would be taken that day unless he should come to the office or arrange for the settlement of the claim. Plaintiff informed the agent that the note would not be due until the following Monday, and that he would settle it when due. He admitted to the agent that he then had the amount with which to make settlement, but made no further offer or tender in the matter. About 5:30 o'clock p.m., after Moody had exhausted every reasonable endeavor to obtain a settlement, and after the mortgaged property had been subject to the claims of plaintiff's creditors and subsequent purchasers for some 28 days in preference to the claim of the mortgagee, Moody, with Grutzmacher, his codefendant, and another assistant, entered the unlocked office of the plaintiff, which was also occupied by a Mr. Lovell, and took orderly possession of the mortgaged property, except some broken chairs and a...
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