Reynolds v. Morton

• Decision Date: 25 January 1916
• Docket Number: 793
• Citation: 154 P. 325,23 Wyo. 528
• Parties: REYNOLDS v. MORTON
• Court: Wyoming Supreme Court

154 P. 325

23 Wyo. 528

REYNOLDS v. MORTON

No. 793

Supreme Court of Wyoming

January 25, 1916

ERROR to the District Court, Niobrara County; HON. WILLIAM C MENTZER, Judge.

Action by John Morton against William Reynolds to recover the value of certain cattle upon which Morton held a chattel mortgage and which had been sold and removed by the mortgagor.

Other material facts are stated in the opinion. (See also 22 Wyo 174, 136 P. 795, and 22 Wyo. 478, 144 P. 18.)

Affirmed.

Allen G. Fisher and William P. Rooney, for plaintiff in error.

The mortgages in question were considered by this court in a cause between the same parties reported in 22 Wyo. 174, 136 P. 795. The mortgage of Morton was not due and was not in default at the time of the alleged conversion. The plaintiff below is not entitled to recover in an action for conversion. He neither alleged or proved actual possession or a right to possession of the cattle at the time defendant sold the cattle. (Holmes v. Bailey, 10 Neb. 300, DeClark v. Bell, 10 Wyo. 1.) Conversion is an offense against possession, and if there is no right to possession the remedy of conversion is not available. (Swife v. Moseley, 10 Vt. 208; Middlesworth v. Sedgwick, 10 Cal. 392; 2 Greenleaf Ev., Secs. 642 and 643; Wilson v. Hoffman, 93 Mich. 72; Mather v. Trinity Church, 3 Serg. & R. 509 s. c., 8 Am. Dec. 663; Northern Pac. R. R. v Paine, 119 U.S. 561; Zinkle v. Cunningham, 10 Neb. 162; Ring v. Neale, 114 Mass. 111; Clark v. Rideout, 39 N.H. 238; Smith v. Colby, 67 Me. 169; McDonald v. McKinnon, 104 Mich. 428.) The court erred in refusing to permit defendant to show that $ 900 of the proceeds had been paid to Morton. This proof was competent in mitigation of damages. (Watson v. Coburn, 35 Neb. 497; Gibbs v. Chase, 10 Mass. 125; Brady v. Whitney, 24 Mich. 154; Coburn v. Watson, 48 Neb. 257; Bigelow Co. v. Heintze, 53 N. J. L. 69; Bullard v. Madison Bank, 107 A. 772; Bucklin v. Beals, 38 Vt. 653; Hulst v. Flanders, 45 Wis. 185; Briggs Iron Co. v. North Adams &c. Iron Co., 12 Cush. (Mass.) 114; Moore v. Hill, 62 Vt. 424; Brooks v. Rodgers, 101 Ala. 111.) Defendant should have been permitted to show that Morton assented to the sale of the cattle. (Railroad Co. v. O'Donnell, 49 O. S. 489; Harker v. Dement, 9 Gill. 7; Strickland v. Barrett, 20 Pick. 415; Hills v. Snell, 104 Mass. 173; Bucklin v. Beals, 38 Vt. 653; Sigel-Campion Live Stock Co. v. Holly, 44 Colo. 580; State of Nebraska v. Omaha Nat. Bank, 66 Neb. 857; Tousley v. Board of Education, 39 Minn. 419; Union Stock Yard &c. Co. v. Mallory, 157 Ill. 554.) The petition was insufficient, as there is no allegation of possession or right to possession. (Fred Krug Brewing Co. v. Healey, 71 Neb. 662; Raymond v. Blancgrass, 36 Mont. 449, 15 L. R. A. N. S. 976; Omlie v. Farmers' State Bank, 8 N.D. 570.) The Fowler mortgage was a first lien and should have been admitted in evidence. Plaintiff had constructive notice of it. Its exclusion was based upon a strained construction of Secs. 3737 and 3733, Comp. Stats. 1910. A second mortgagee taking with knowledge of the first mortgage is estopped to defend against it on mere technical grounds. (11 Cobbey Chat. Mort., Sec. 1038; Howard v. First Nat. Bank, 44 Kan. 549; Russell v. Longmore, 29 Neb. 209; Pecker v. Silsby, 123 Mass. 108; Cassidy v. Harrelson (Colo. App.), 29 P. 525; Wade v. Strachan, 71 Mich. 459; Thompson v. Van Vechten, 6 Bosw. 272; Keeler v. Keeler, 31 N. J. Eq. 181; Laubenheimer v. McDermott, 5 Mont. 512; Williamson v. Railroad Co., 29 N. J. Eq. 336.) The Morton mortgage was given for a new consideration and other stock was included. (Wright v. Larson, 51 Minn. 321, 38 Am. St. Rep. 504; Ransom v. Schmela, 13 Neb. 73; Marsden v. Cornell, 62 N.Y. 215; Nix v. Wiswell, 84 Wis. 334; Corbin v. Kincaid, 33 Kan. 649; Frank v. Playter, 73 Mo. 672; Nat. Bank v. Sprague, 21 N. J. Eq. 530; Arlington Mill & Elevator Co. v. Yates, 57 Neb. 286; The Independence Fed. Cas. 7013, 9 Ben. 395; Wethrell v. Spencer, 3 Mich. 123; Gregory v. Thomas, 20 Wend. (N. Y.) 17; Wells, Fargo & Co. v. Alturas, 6 Idaho, 506; American Lead Pencil Co. v. Champion, 57 Kan. 352; Huber Mfg. Co. v. Sweney, 57 Ohio St. 169; Nickerson v. Wessls-Stone Merc. Co., 71 Minn. 230; Iowa Loan Co. v. Kimball Piano Co., 124 Iowa 150; Westinghouse &c. Co. v. Citizens &c. Co., 24 Ky. Law Rep. 334, 68 S.W. 463; Aultman v. Young (S. D.), 126 N.W. 645.) The cases of Graham v. Blinn, 3 Wyo. 746, and Harle-Hass Drug Co. v. Rodgers Drug Co., 113 P. 791, do not hold to the contrary. A mortgage is security for the debt, not for the note which evidences the debt. (1 Cobbey Chat. Mortg., Sec. 471; Curtis v. Wilcox (Mich.), 51 N.W. 992; Austin v. Bailey (Vt.), 24 A. 245.) Defendant offered to prove that Morton acquiesced in and consented to the sale. It was error to exclude the offer and also to exclude an offer of proof that Morton had received proceeds from the sale. The verdict was $ 2,765.18 in excess of any honest sum due.

Norton & Hagens, for defendant in error.

An allegation of possession or right to possession was unnecessary. The action may be termed an action for damages simply. (Cone v. Ivinson, 4 Wyo. 203; Ashmead et al. v. Kellogg, 23 Conn. 70; Coles v. Clark et al., 3 Cush. 391; Merchants' and Planters' Bank v. Meyer, 20 S.W. 406; Howard v. Burnes, 24 P. 981.) The insecurity clause in the mortgage conferred a right to immediate possession upon removal of the property. (McGrauph v. Bishop, 48 N.W. 167 (Mich.); Canfield v. Gould & Co., 73 N.W. 550 (Mich.); Reynolds v. Fitzpatrick, 57 P. 452 (Mont.); Elstad v. Northwestern Elevator Co., 69 N.W. 44 (N. D.), 7 Cyc. 10; Boydston v. Morris, 10 S.W. 331 (Tex.); Williams v. Beasley, 25 S.W. 231; Holst v. Hermon, 26 So. 157 (Ala.); Ghio v. Bryne, 27 S.W. 243 (Ark.); Donovan v. St. Anthony and D. Elevator Co., 75 N.W. 809 (N. D.) Defendant's possession was wrongful from the first. (Stewart v. Long, 44 N.E. 63 (Ind.); Adams v. Castle, 67 N.W. 637 (Minn.); 38 Cyc. 2032-2035.) There was no evidence of the consent on the part of Morton to the sale. The Fowler mortgage was not renewed and was invalid as against subsequent mortgagees in good faith. (Sec. 3733, Comp. Stats 1910.) A subsequent bona fide mortgagee is one that became such after the execution of the prior mortgage. (Day v. Munson, 14 Ohio St. Reps. 488; Briggs v. Nette, 3 N.W. 231; Babbitt v. Bent County Bank, 108 P. 1003; Brereton v. Bennett, 23 P. 310.) The chattel mortgage act must be strictly construed. (Cassell v. Deisher, 89 P. 773 (Colo.); National Livestock Commission Co. v. Talliaferro, 93 P. 983 (Okla.); McCres v. Hopper, 55 N.Y.S. 136; Cooper v. Koppes, 15 N.E. 662 (Ohio); Swiggitt v. Dodson, 17 P. 594 (Kan.); Jones on Chattel Mortgages (3rd Ed.), Sec. 297.) The Fowler mortgage is inferior to that of plaintiff. (Paine v. Waite, 11 Gray. Mass. 190; Paul v. Hayford, 22 Maine, 234; Woodman v. Hunter, 36 P. 713 (Kan.) Where a new mortgage is taken in place of an old mortgage, it operates as a discharge and satisfaction of the old. (Herr v. Denver Milling Co., 22 P. 770.) If parties lose the benefits of securities through inattention and carelessness in their business, courts cannot assist them. (Wright v. Larson, 53 N.W. 712 (Minn.) The assignments with reference to the admission of testimony are not meritorious. Defendant's motion for a directed verdict was properly overruled. Evidence of conversations had prior to the execution of the Morton mortgage was incompetent to vary the terms of the mortgage itself. Assignments of error with reference to requested instructions are unworthy of consideration, as said instructions are not made a part of the record and were immaterial in any event, in view of the evidence in the case. Said requested instructions did not properly state the law. The plaintiff established a case by overwhelming testimony and defendant failed in proving a legal defense. Any error committed by the lower court was without prejudice, and defendant cannot complain of it. (Gregory v. Morris, 1 Wyo. 213; Jenkins v. City of Cheyenne, 1 Wyo. 287; Fein v. Davis, 2 Wyo. 118; Davis v. Lumber Company, 14 Wyo. 317; David v. Whitehead, 13 Wyo. 189; Reynolds v. Morton, 136 P. 795 (Wyo.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

In this case the defendant in error, John Morton, commenced the action to recover from the plaintiff in error, William Reynolds, the value of certain cattle upon which Morton held a chattel mortgage, and which cattle Reynolds had purchased from the mortgagor. The trial to a jury resulted in a verdict in favor of plaintiff below, and against the defendant below for $ 4,451.84. Judgment was entered upon the verdict, and defendant brings the case here on error.

The plaintiff's cause of action is based upon a chattel mortgage executed by one Rimington and wife to plaintiff August 26, 1909, to secure a note of that date of said Rimingtons to plaintiff for $ 12,726.52, and due August 26 1912, with interest. The property described in the mortgage being, "All our herd of cattle numbering five hundred and fifty (550) head, consisting of cows, calves, steers, heifers and bulls, branded among other brands AC on any part of animal. All our herd of horses, mares and colts numbering ten (10) head, branded among other brands the following AC on left hip, together with the increase thereof." The mortgage was duly filed and indexed August 30, 1909. Plaintiff in the first count of his petition, after pleading the mortgage above referred to, and that there was still due thereon more than the amount claimed from the defendant, alleged in substance that in November, 1909, the mortgagors at the request and instigation of defendant in utter hostility to plaintiff's rights and mortgage, and in violation...