Saxton v. Breshears

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

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.

[21 Idaho 334]

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 [121 P. 568]

[21 Idaho 335] SULLIVAN, J.

This is an action in claim and delivery, whereby the plaintiff seeks to recover from the defendant the...