Ossmen v. Commercial Credit Corp., 7785
| Decision Date | 28 February 1952 |
| Docket Number | No. 7785,7785 |
| Citation | 241 P.2d 351,72 Idaho 355 |
| Parties | OSSMEN et ux. v. COMMERCIAL CREDIT CORP. |
| Court | Idaho Supreme Court |
Gee & Hargraves, Pocatello, for appellant.
Black & Black, Pocatello, for respondents.
Respondents sued in conversion for damages based on the foreclosure of a chattel mortgage by notice and sale of a Ford automobile and two trucks, alleging as a basis for the action: '* * * that on September 1st and on September 25th, 1950, the dates hereinafter referred to in this Complaint, plaintiffs had fully paid and performed the covenants and agreements contained in said Chattel Mortgage and Note, and were not in default in any particular, and that the said defendant, without any cause, and without any default made in the conditions of said Mortgage, by these Plaintiffs, and contrary to the terms of said Mortgage, caused to be served on September first, 1950, on the Sheriff of Jefferson County, Idaho, an Affidavit and Notice of Sale under the provisions of Chapter 11, Title 45 of the Idaho Code, for the summary foreclosure by notice and sale of said Chattel Mortgage, and that pursuant thereto, the Sheriff of Jefferson County, Idaho, under the specific directions of the defendant, seized that certain 1949 4-Door Sedan referred to above, and sold the same.'
And that the Sheriff of Butte County at the foreclosure sale therein, September 25, sold the truck beds on the trucks, 'which were not secured by said chattel mortgage,' allegedly over respondents' protest, i. e., as to the sale of the truck beds; that the reasonable value of the trucks and car was $7,000 and the beds, $1,000, and a radio on one of the trucks was $95; (the Ford automobile sold for $1,350, the larger truck for $2,000 and the smaller one for $1,000) alleging as special damages $2,600 because of respondents' inability to perform a contract to harvest crops, and connected therewith, damages of $1,000 because the seizure of the trucks prevented the completion of the purchase of a combine; and asked punitive damages of $5,000.
The answer denied all of the material allegations of the complaint and as a further and separate defense alleged: 'That on September 9, and September 25, 1950, plaintiffs were in default under the terms and conditions of the certain mortgage, * * *; that the taking and sale of the said Chattels was all done and had in accordance with the terms and provisions of said Chattel Mortgage.'
that prior to September 9 and 25 (dates of the sales) appellant had granted respondents extensions of time; that respondents repeatedly promised to retire the indebtedness and correct the defaults, but failed, neglected and refused to do so; and that at all times defendant treated plaintiffs with forbearance, liberality and tolerance; and that respondents' damages, if any, were the result of their own wilful failure, neglect and disregard of their duties and obligations to pay.
The jury rendered a verdict in favor of respondents and against appellant for $4,360 general and special damages without further specification, and no punitive damages.
The appeal is from the judgment based on the verdict and orders denying a motion for a new trial and judgment notwithstanding the verdict.
Though the answer asserted the mortgage was due, this did not shift the burden of proof which remained throughout upon respondents to prove the chattel mortgage was not due in any particular when foreclosure was started, Idaho Placer Min. Co., Ltd., v. Green, 14 Idaho 294 at pages 303-304, 94 P. 161; Woodruff v. Butte & Mkt. L. C. Co., 64 Idaho 735 at page 740, 137 P.2d 325. Appellant denied respondents' allegation that the mortgage was not due and the further allegation in the answer that respondents were in default under the chattel mortgage, did not as to the question of payment, shift the burden, since appellant asked for no affirmative relief except costs. Southeast Sec. Co. v. Christensen, 66 Idaho 233 at page 239, 158 P.2d 315.
The complaint did not challenge the foreclosure proceedings, except as to the sale of the beds on the two trucks as not being included in the chattel mortgage.
The chattel mortgage thus provided: 'In case default be made in the payment of said debt or interest after maturity, or of any of the payments above scheduled, or any extensions or renewals or rearrangements thereof, or if any execution, attachment, sequestration or other writ shall be levied on said chattels or on any other property of Mortgagor or if a petition under the Bankruptcy Act or any Amendment thereof shall be filed by or against said Mortgagor, or if said Mortgagor shall make an assignment for the benefit of his creditors, or if said Mortgagor shall fail to keep and perform any of the covenants, stipulations and agreements herein contained on his part to be performed, or if any insurance company should cancel as to Mortgagor any policy against the hazards of fire and theft, or if said Mortgagee shall at any time deem said mortgage, said chattels, said debt or said security unsafe or insecure, or shall choose so to do, then upon the happening of said contingencies or any of them, the whole amount therein secured, on each of said payments above scheduled remaining unpaid, is by said Mortgagor admitted to be due and payable, and said Mortgagee at his option, without notice, is hereby authorized to enter upon the premises of the Mortgagor or other places where said chattels might be, and take possession of and remove said chattels, and all equipment, accessories, or repairs thereon, which shall be considered a component part thereof and subject to this mortgage, * * *.'
Respondents refinanced the uncompleted purchase of the automobile and the two trucks by giving appellant a chattel mortgage, together with a note secured thereby, for $5,437.38 made up of a balance due on the two trucks of $2,800, and $2,250 in liquidation of a disputed claim between respondents and appellant, carrying charges, interest, etc. Installments on the chattel mortgage were due and paid as follows:
When Due Amount When Paid Amount
-------- ------ --------- ------
December 2, 1949 $100 December 13, 1949 $100
January 2, 1950 100 January 10, 1950 100
February 2, " 100 March 13, " 100
March 2, " 100 March 23, " 100
April 2, " 100 May 3, " 100
May 2, " 200 May 15, " 200
June 2, " 200 July 5, " 200
July 2, " 200 July 30, " 200
August 2, " 200
September 2, " 200
October 2, " 200
November 2, " 3,737.38
August 2, nine payments had become due totaling $1,300. On September 2, another payment of $200 would have fallen due, making a total amount due September 2, 1950, of $1,500.
From the inception of the giving of the chattel mortgage, payments were not made on time, 1 and as appears from Dfts. Ex. 21, which were the posting media or original entries made by appellant when payments were made and with the exception of three other amounts hereinafter discussed, are the only slips indicating payments on respondents' account.
Prior to March 12, 1950, there were conversations, direct and over the telephone, and correspondence between respondents and appellant's manager with reference to respondents' delinquencies and a request for payment, culminating in respondents sending appellant a check for $475 and this letter from respondent to appellant as to the disposition thereof:
'Howe, Idaho
'March 18, 1950
'Commercial Credit Corporation
'410 West Lewis Street
'Pocatello, Idaho
'Gentlemen:
'Yours very truly,
's/ Lee Ossmen
Lee Ossmen'
One Hundred Dollars of this $475 was applied by appellant on the current installment, evidently in March, and the balance of $375 to the last payment of $3,737.38, reducing the same to $3,362.38, as appears from Dfts. Ex. 18. A page from respondent's ledger, Plfs. Ex. D-1, purports to show the application of $475 on the current installments, under date of February 16, 1950. Such entry by respondent in his ledger, uncommunicated to appeallant, does not controvert the binding effect of the letter of March 18, undenied by respondent. Murphy v. Mut. Life Ins., Co., 62 Idaho 362 at page 376(5), 112 P.2d 993; Malcolm v. Hanmer, 64 Idaho 66, 127 P.2d 331; Shapira v. Budish, 275 Mass. 120, 175 N.E. 159 at page 161(4); Southern Coal Co. v. Rice, 122 S.C. 484, 115 S.E. 815, at page 818, last half of (8, 9); Howell v. Ott. 182 Miss. 252, 180 So. 52, 181 So. 740.
Respondent himself admitted he made the payment and while he testified he did not remember writing Dfts. Ex. 9, the signature at the bottom appeared to be his.
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Q. Will you state, generally, Mr. Ossmen, what defenda...
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State ex rel. McKinney v. Richardson
...P.2d 128; Craig v. Village of Meridian, 56 Idaho 220, 52 P.2d 145; State v. Calkins, 63 Idaho 314, 120 P.2d 253; Ossmen v. Commercial Credit Corp., 72 Idaho 355, 241 P.2d 351. So far as negligence is concerned, the only issues for the jury were, whether the negligence of the defendants was ......