Robison v. Gray

• Citation: 57 N.W. 614,90 Iowa 699
• Parties: C. W. ROBINSON, Appellant, v. W. W. GRAY, Appellee
• Decision Date: 26 January 1894
• Court: United States State Supreme Court of Iowa

57 N.W. 614

90 Iowa 699

C. W. ROBINSON, Appellant, v. W. W. GRAY, Appellee

Supreme Court of Iowa, Des Moines

January 26, 1894

Appeal from Webster District Court.--HON. S. M. WEAVER, Judge.

THIS is an action upon four promissory notes executed by the defendant, and an account for interest on a balance alleged to be due the plaintiff. The defendant, by his answer, denied indebtedness upon the account, and alleged that the promissory notes were fully paid by the seizure of certain property rights and credits of defendant under a chattel mortgage given to secure the payment of said notes. In another count of the answer the defendant alleges that the plaintiff maliciously and wrongfully seized, and converted to his own use, the property described in the chattel mortgage by reason of which wrongful acts the defendant was damaged in the sum of two thousand dollars actual damages, and one thousand dollars exemplary damages. The action was aided by an attachment, which was based upon the grounds that the defendant was about to dispose of his property with intent to defraud his creditors, and that the debt sued on was incurred for property obtained under false pretenses. The writ of attachment was levied upon certain real estate of the defendant. A levy was also made upon certain personal property. The defendant, by way of counterclaim, averred that the grounds upon which the attachment was procured were false, and that the plaintiff had no reasonable grounds for believing them to be true, but knew the same to be false and untrue, and that the same were made willfully and maliciously, by reason of which the defendant was damaged in the sum of two thousand dollars actual, and three thousand dollars exemplary, damages, for which judgment was demanded. This counterclaim was denied by the plaintiff. The cause was tried to a jury, and a verdict was returned for the defendant for five hundred and twenty-eight dollars and forty-eight cents. It was found specially by the jury that the attachment was wrongfully and maliciously sued out, and the seizure and sale of the property under the chattel mortgage was wrongful and an allowance was made in the sum of five hundred and eleven dollars for damages for the wrongful suing out of the attachment. The plaintiff appeals.

Reversed.

Blake & Mitchell and Frank Farrell for appellant.

Yeoman & Kenyon for appellee.

ROTHROCK J. GIVEN, J. (dissenting.)

OPINION

ROTHROCK, J.

I.

The matter of account involved in the controversy consisted of claimed balances due upon accounts of the plaintiff against the defendant. The court instructed the jury that there was no evidence authorizing a recovery of the interest claimed. It is insisted that this instruction was erroneous. An examination of the evidence satisfies us that the instruction of the court as to this item of the claim was correct.

II. It appears from the evidence that the plaintiff is a wholesale lumber dealer, and that the defendant was for several years a retail dealer in that line at Lehigh, in Webster county, and that he made the principal part of his purchases of lumber from the plaintiff on credit. He did not make prompt payments for his purchases, and at times his indebtedness to the plaintiff amounted to considerable sums. On the eleventh day of June, 1891, the defendant executed to plaintiff the four promissory notes upon which the suit is founded. The aggregate amount of the notes was one thousand, three hundred and sixty-eight dollars. The first of said notes was made payable in thirty days, the next on the ninth day of September, the next on the ninth day of October, and the last on the eighth day of November, in the same year. The mortgage given to secure the payment of the notes was executed on the same day. The property mortgaged consisted of all of defendant's stock of lumber, and his books of account, and the accounts contained in said books, and all notes taken in settlement of said accounts. The mortgage was recorded on the twelfth day of June, and on the next day it was placed in the hands of the sheriff of Webster county for foreclosure. The said sheriff took possession of the property, and sold the same at public sale, as provided in the mortgage. The sale under the mortgage was made on the third day of July, 1891, before any of the notes became due. It is claimed by counsel for the appellee that there was no authority given in the mortgage to foreclose the same before it became due, and the court instructed the jury on this question as follows:

"It is conceded on the trial that on the eleventh day of June, 1891, defendant gave plaintiff his four promissory notes sued upon, which said notes were made payable at various dates in the future, from July 11 to November 8, 1891, and that, to secure the payment of said notes, defendant then and there made and delivered to plaintiff a chattel mortgage upon certain personal property, rights, and credits. It is also conceded that immediately or very soon after the giving of said mortgage, plaintiff proceeded to take possession of said property described therein, and to offer the same for sale, and did in fact make public sale of said property on the third day of July, 1891. Upon these admitted facts you are instructed that, under the terms of the mortgage given by the defendant, plaintiff had the right to take possession of the mortgaged property at any time he chose so to do, and no damages can be assessed against him in this action for such taking. He did not, however, have any legal right to sell said property before the debt secured thereby became due, and by such sale he became and is liable to account to defendant for the fair and reasonable value of the property so sold, without regard to the amount for which the sale was made."

That part of the mortgage which provides for its foreclosure is as follows: "And I, the said W. W. Gray, do hereby covenant and agree with the said C. W. Robinson that in case of default made in payment of the above mentioned promissory notes, or any part thereof, either principal or interest, and all taxes assessed against said property before any part thereof becomes delinquent, or in case of my attempting to dispose of, or remove from said county of Webster, the aforesaid goods, and chattels, or any part thereof, or whenever the said mortgagee or his assigns shall choose so to do, then, and in that case, it shall be lawful for the said mortgagee or his assigns, by himself, or agent or any officer, to take immediate possession of said goods and chattels wherever found, the possession of these presents being sufficient authority therefor, and to sell the same at public or private sale, or so much thereof as shall be sufficient to pay the amount due or to become due, as the case may be, with all interest and taxes, costs, charges, expenses, and attorney's fees pertaining to the taking, keeping, advertising, and selling said property and the collection of this debt." The instructions above quoted were evidently given in reliance upon the case of Bank v. Taylor, 67 Iowa 572, 25 N.W. 810. The language employed in the mortgage which was construed in that case was somewhat similar to the provisions of the mortgage in the case at bar. It was held in that case, because the mortgage provided "that in case of failure to pay the amount due hereon at maturity, or whenever the holder hereof may deem himself insecure, then he may take said property by virtue of this mortgage, and sell the same at public auction, * * * and the proceeds of said sale to be applied on said note," that "this provision, standing alone, would doubtless empower both the seizure and sale of the property before the maturity of the debt, if the holder considered himself insecure." But it was further held that said clause in the mortgage should be construed with another condition of the instrument, which was as follows: "That, if this note and mortgage shall be paid on or before the maturity thereof, then this mortgage to be void," and the conclusion was reached that under the stipulation of the mortgage...