Saxton v. Breshears

• Decision Date: 07 February 1912
• Citation: 21 Idaho 333,121 P. 567
• Parties: C. E. SAXTON, Respondent, v. F. M. BRESHEARS, Sheriff of Canyon County, Appellant
• Court: Idaho Supreme Court

121 P. 567

21 Idaho 333

C. E. SAXTON, Respondent, v. F. M. BRESHEARS, Sheriff of Canyon County, Appellant

Supreme Court of Idaho

February 7, 1912

CHATTEL MORTGAGE-CLAIM AND DELIVERY-AUTHORITY TO SELL MORTGAGED PROPERTY-WAIVER OF MORTGAGE LIEN-CONTRACT-EXECUTORY.

(Syllabus by the court.)

1. Where N. and wife gave to F. two chattel mortgages on a growing crop of hay to secure the payment of two promissory notes, and the mortgagee authorized the mortgagor to sell the mortgaged property and to apply the proceeds on said notes and a few days after the mortgages became due, N. entered into a contract with S. to sell him the mortgaged hay at eight dollars per ton, whereby the hay was to be baled and placed on board the cars, S. reserving the right to reject any and all of said hay, and payment therefor to be made when hay was accepted, and S. paid $100 on said contract, and thereafter a dispute arose between S. and N. as to which one must pay the expense of baling the hay, and such dispute continued from December 24, 1908, to April 9, 1909, when a written contract was entered into for the sale of said hay whereby the purchaser was to pay $5.25 per ton on board the cars at Nampa, the purchaser reserving the right to reject any and all of such hay that was not first class, and on the 17th of March, 1909, the mortgagee commenced the foreclosure of said mortgages and the sheriff took possession of said hay, held, that an action in claim and delivery by said purchaser cannot be maintained for the possession of said hay, as under either of said contracts he was not entitled to the possession thereof until the same was delivered on board the cars.

2. Under the provisions of sec. 4272, Rev. Codes, where a delivery of personal property is claimed in an action, it must appear that the plaintiff is the owner of the property claimed or is entitled to the possession thereof, and that the property is wrongfully detained by the defendant.

3. Where the mortgagee authorizes the mortgagor to sell the mortgaged property, such authority is not a waiver of the mortgage lien until the mortgagor has made a valid contract for the sale of such hay, and the mortgagee may revoke such authority at any time before a valid sale is made.

4. Held, under the facts, that the minds of the purchaser and the mortgagor did not meet on the alleged contract of sale of December 24, 1908, and that the mortgagee revoked such authority to sell prior to the contract of April 9, 1909.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action in claim and delivery to recover certain hay. Judgment for the plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellant.

R. B Scatterday, and Chas. F. Koelsch, for Appellant.

Plaintiff did not have title. He was to pay for the hay upon delivery, and he never at any time tendered payment. which was an express condition precedent to the passing of title. (12 Current Law, 1721, citing Berlaiwosky v. Rosenthal, 104 Me. 62, 71 A. 69; Sharp v. Hawkins, 129 Mo.App. 80, 107 S.W. 1087; N.W. Bank v. Silberman, 154 F. 809, 83 C. C. A. 525; Hilmer v. Hills, 138 Cal. 134, 70 P. 1080; Cardinell v. Bennett, 52 Cal. 476; Blackwood v. Cutting Packing Co., 76 Cal. 212, 9 Am. St. 199, 18 P. 248; Masoner v. Bell, 20 Okla. 618, 95 P. 239, 18 L. R. A., N. S., 166; Drake v. Scott, 136 Ala. 261, 96 Am. St. 25, 33 So. 873.)

The mere giving of earnest will not operate to pass the title when otherwise the contract is such that title would not have passed. (24 Ency. L., 2d ed., 1045-1047; Sharp v. Hawkins, 129 Mo.App. 80, 107 S.W. 1087; N.W. Bank v. Silberman, supra; Bailey v. Dennis, 135 Mo.App. 93, 115 S.W. 506.)

So long as something remains to be done, such as the ascertainment of the price, or quantity, title does not pass. (Caruthers v. McGarvey, 41 Cal. 15; 12 Current Law, 1720, and cases cited; McLaughlin v. Piatti, 27 Cal. 452; N.E. Dressed Meat etc. Co. v. Standard etc. Co., 165 Mass. 328, 52 Am. St. 516, 43 N.E. 112; Benjamin on Sales, c. 3.)

The plaintiff, while a witness on his own behalf, not only claimed that he had reserved the right to reject any hay that, upon offer of delivery, was, in his judgment, not of good quality, but that he actually exercised that privilege. Under such an agreement of sale title does not pass until acceptance by the buyer. (12 Current Law, 1722; Bray Clothing Co. v. McKinney, 90 Ark. 161, 118 S.W. 406.)

W. A. Stone, E. J. Dockery, and G. W. Lamson, for Respondent.

The lien of a mortgage can be waived by the mortgagee, either orally or in writing. (Knollin & Co. v. Jones, 7 Idaho 466, 63 P. 638; Partridge v. Minn. & Dakota Elevator Co., 75 Minn. 496, 78 N.W. 85; N.E. Mortgage Security Co. v. Great Western Elevator Co., 6 N.D. 407, 71 N.W. 130; Fairweather v. Nelson, 76 Minn. 510, 79 N.W. 506; Peterson v. St. Anthony Elevator Co., 9 N.D. 55, 81 Am. St. 528, 81 N.W. 59; Jones on Chattel Mortgages, 3d ed., sec. 457.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an action in claim and delivery, whereby the plaintiff seeks to recover from the defendant the possession of one hundred tons of hay. The following facts appear from the record:

In the early summer of 1908, one E. C. Norton and his wife gave two chattel mortgages on a growing crop of hay to secure the payment of their two certain promissory notes for the aggregate principal sum of $ 502.50, which notes became due on December 15, 1908. Said mortgages were duly recorded, the first, on June 15, 1908, and the second, on September 25 1908. During the summer of the same year, through oral conversations and letters, the mortgagor, Norton, claims that he received from the mortgagee authority to sell the mortgaged hay, and if he did sell it, he was to deposit the proceeds in a bank at Caldwell to the credit of the mortgagee. On December 24, 1908, a few days after the maturity of said notes and mortgages, the plaintiff, who is respondent, negotiated with the mortgagor Norton for the purchase of the hay covered by said mortgages. It appears that said hay was a part of one large stack containing 131 tons, situated on the premises occupied by said Norton under a cropping lease; that $ 100 was paid down at that time on the purchase price, and thereafter a dispute arose in regard to which of the contracting parties must pay for baling the hay. Norton claimed that under said contract he was to receive eight dollars, net, per ton for said hay, delivered on the cars at Caldwell, and that Saxton was to pay for the baling, while Saxton contended that eight dollars per ton included the charges and cost of baling. It seems that dispute between the parties caused a delay in the carrying out of said agreement, and that the controversy as to who should bale the hay was not settled between the parties until about the 9th of April, 1909, when it was agreed that the hay should be delivered at Nampa instead of at Caldwell, and that Norton was to receive $ 5.25 per ton, net, therefor, and to receive two dollars per ton for placing the hay on the cars. On March 17, 1909, at which time none of the hay had been delivered under the agreement with Saxton, the mortgagee commenced proceedings to foreclose his mortgages, and the defendant, who is appellant, as sheriff of Canyon county, under said foreclosure proceedings, took possession of said hay on said 17th day of March. Under that state of facts, on April 13, 1909, plaintiff commenced this action, claiming ownership and right to the possession of said hay. Answer was filed by the defendant sheriff, denying the allegations of the complaint as to...