Partridge v. Minn. & D. Elevator Co.
| Decision Date | 02 February 1899 |
| Citation | 75 Minn. 496,78 N.W. 85 |
| Parties | PARTRIDGE v. MINNESOTA & D. ELEVATOR CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Clay county; L. L. Baxter, Judge.
Action by George H. Partridge, as trustee, against the Minnesota & Dakota Elevator Company. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.
1. A purchaser of chattels from the mortgagor, upon which there is a mortgage, takes his title free of the lien, if the sale was made with the authority or consent of the mortgagee. Such authority need not be in writing. It may be express or implied from the conduct of the mortgagee with reference to the mortgaged property.
2. Evidence considered, and held, that it was sufficient to require the submission of the case to the jury upon the issue whether the mortgagee consented to the sale in question by the mortgagor.
Wilson & Van Derlip, for appellant.
F. B. Dodge and C. A. Nye, for respondent.
Action for the alleged conversion by the defendant of certain wheat, upon which the plaintiff had a mortgage. Defense that the defendant purchased the wheat, in the usual course of business, from the mortgagor, who was then authorized by the mortgagee to make the sale. At the close of the evidence, the defendant requested the trial court to direct a verdict in its favor, which was refused; and thereupon the court directed a verdict for the plaintiff for the amount claimed. The defendant appealed from an order denying its motion for a new trial.
The only assignment of error we find it necessary to consider is the one to the effect that the trial court erred in so directing a verdict. It was admitted on the trial that the plaintiff had a mortgage on the wheat; that the defendant had notice thereof; and that it purchased the wheat of the mortgagor, and refused to deliver the same, or to account therefor to the plaintiff. It follows that the instruction of the trial court was correct, unless there was evidence in the case tending to show that the plaintiff expressly or impliedly authorized such sale; but, if there was such evidence, it was error for which a new trial must be granted. A purchaser of chattels from the mortgagor, upon which there is a mortgage, takes his title free of the lien of the mortgage, if the sale was made with the authority or consent of the mortgagee. Such authority need not be in writing. It may be express or implied from the conduct of the mortgagee with reference to the mortgaged property. Hogan v. Elevator Co., 66 Minn. 344, 69 N. W. 1; Jones, Chat. Mortg. § 465; 5 Am. & Eng. Enc. Law (2d Ed.) 996.
After an attentive consideration of the record, we have reached the conslusion that there was evidence tending to support the contention of the defendant that the plaintiff authorized the mortgagor to sell the wheat in question, and pay the debt secured thereby from the proceeds of the sale, sufficient to take the case to the jury. The chattel mortgage was made by James Shea to the plaintiff upon the crops growing and to be grown upon a certain farm in his possession, to secure the payment of $3,000. The wheat in controversy was a part of such crop. The plaintiff employed an agent, Mr. Nye, to look after the harvesting, threshing, and putting the wheat in a granary or elevator. There was evidence tending to show that the mortgagor, the latter part of September, 1897, with the knowledge and consent of the agent, placed the wheat in the defendant's elevator, taking tickets or receipts therefor in his own name; that a part of the tickets were marked ‘Mortgaged,’ and the whole thereof left in the possession of the defendant's agent, in charge of the elevator, at the request of the mortgagor. In reference to this transaction, Mr. Nye testified that it did not make any difference to him whether the mortgagor turned over the tickets, or whether he sold them, and turned over the money. The mortgage debt matured October 7, 1897, and on October 27th the mortgagor wrote to the plaintiff that he had wheat enough in the elevator to settle his claim, but stated that he did not like to then sell, as he expected a better price, to which the plaintiff replied to the effect that he believed the wise course was for the mortgagor to close out the property at...
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