Plano Mfg. Co. v. Daley
| Decision Date | 08 January 1897 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ransom County; Lauder, J.
Claim and delivery by the Plano Manufacturing Company against John Daley. From a judgment for defendant, plaintiff appeals.
Affirmed.
Newman Spalding & Phelps, for appellant.
Hugh Doherty, for respondent.
Every fact and circumstance surrounding this case, as shown by the record, tends to confirm the justice of the judgment from which the appeal is taken. If that judgment is to be disturbed, it must be by reason of some imperative rule of law. The action was claim and delivery. As we understand it all the property mentioned in the complaint has been eliminated from the case except the wheat. In this plaintiff claimed a special interest and right of immediate possession by virtue of chattel mortgages executed by defendant. The execution of the mortgages was admitted, but it was claimed that they were obtained by fraud. All the circumstances attending the execution of the mortgage were fully set forth. There was, also, a general denial. After both parties had introduced their evidence, and rested, the court directed a general verdict for defendant. This is the one error assigned, and its consideration necessitates some reference to the testimony.
In the summer of 1893, the defendant became indebted to the plaintiff in the sum of $ 200 for machinery purchased. On July 28th of that year defendant gave the plaintiff a chattel mortgage securing two notes, of $ 25 each,--one maturing October 1, 1893, and the other a year later. On August 1 1893, defendant executed to plaintiff another chattel mortgage securing two notes, of $ 75 each, maturing at the same dates. The mortgages, as well as those hereinafter mentioned, were drawn upon forms printed with blank spaces and for the special use of plaintiff in North Dakota. The first portion of the instrument, naming the mortgagor and mortgagee, with their residences, etc., is about in the usual form. Then follow blank lines for the description of property, and, following the blank lines, is the following, in print: "All the crops, of every name, nature and description, now growing, sown, or to be sown, and to be grown, cultivated, and harvested during the years A. D. 1893, 1894, and 1895, and each and every succeeding year until the debt hereby secured is fully paid, on the following described land, now occupied or rented by me, to-wit, of section , town , range , county of , State of North Dakota," etc. The mortgages above mentioned were very inartificially drawn, and yet we think their meaning clear. In the first mortgage certain machinery and live stock were described in the blank space, and immediately thereafter was written (the language being corrected) the following: Immediately followed the printed portion above set forth. In the space left for the description of the subdivision of the section was written "25 acres of wheat, 25 acres of oats." The section, town, and range, were properly filled, being section 1, town 134, range 58. The mortgage of August 1st, covered a binder and two colts, properly described in writing, and, in writing, "Also 10 acres of wheat grown on Sec. 1, 134, R. 58, ready to be harvested." In this mortgage, in the space for the subdivision of the section, was written "Binder, 2 colts, and ten acres of wheat,"--the other blanks being properly filled. The notes secured by these mortgages which matured on October 1, 1893, were not paid. On April 11, 1894, a collection agent of plaintiff called upon defendant for the purpose of extending the notes and taking new mortgages. The only conflict in the testimony relates to what took place at that time. It is undisputed that, at that time, defendant's eyesight was greatly impaired, and that he had recently had an operation performed upon his eyes, and, while he could write his name, he could not read print, or distinguish objects with any accuracy. This condition was well known to the agent, and was spoken of before business was mentioned. The agent had known defendant, as he testifies, for about nine years, and "knew him pretty well." When the agent stated the purpose of his visit, the defendant at once stated that, if additional security was wanted, he could not give it, as he had none to give. He was assured in positive terms (both parties so testify) that no additional security was wanted, and that plaintiff simply wished to extend the notes and renew the mortgage upon the same property. Thereupon the agent proceeded to draw up new mortgages. These new mortgages covered the same machinery and same live stock described in the original mortgages, but no crop whatever was described in the written portion; but, in the blank left in the printed portion for a description of the subdivision of the section, instead of the matter contained in the old mortgages, the agent wrote in "Northeast 1/4," making the renewal mortgages cover all the crops grown on that quarter section until the notes were paid. This controversy arises over wheat the greater portion of which was grown in the year 1895 on this tract of land, it being the quarter section owned by defendant and upon which he resided.
It is perfectly clear that the new mortgages covered property not covered by the old. It is equally clear that defendant never intended to give mortgages on any property not covered by the old mortgages, and equally clear that plaintiff, by its agent, represented and stated to defendant that it did not ask or expect a mortgage on any property not covered by the old mortgages. The presence of additional property in the new mortgages must, then, be the result either of fraud or mistake. If plaintiff took mortgages covering additional property, and knowingly did so, fully understanding, as it must, that defendant did not so intend, it was, under the circumstances of this case, considering the previous conversation, the condition of defendant's sight, his long acquaintance with the agent, and the unquestioned confidence that he placed in him, a gross fraud upon defendant that would avoid the mortgage as to the additional property. On the other hand, if plaintiff's agent inserted the additional property because he believed that it was in the original mortgages, when in fact it was not, and if defendant signed the renewal mortgages believing that they covered only such property as was covered by the old mortgages, then there was a case of mutual mistake, which would equally avoid the new mortgages as to the additional property.
But plaintiff urges that, since defendant pleaded fraud as a defense, he...
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