Security Nat. Bank v. White Co.
| Decision Date | 31 December 1926 |
| Docket Number | 5743 |
| Citation | 211 N.W. 452,50 S.D. 598 |
| Parties | SECURITY NATIONAL BANK, Plaintiff and respondent, v. WHITE COMPANY, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Codington County, SD
#5743--Reversed
Mather, Stover & Mather, Watertown, SD
Attorneys for Appellant.
Loucks, Hasche & Foley, Watertown, SD
Attorneys for Respondent.
Opinion filed December 31, 1926
The respondent sued for the alleged conversion of a motor vehicle. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $336.22. From a judgment entered in conformity with said verdict and from an order denying a new trial this appeal is taken.
Respondent claimed the property under a chattel mortgage dated May 18, 1920. and duly filed on May 21, 1920.
Some time in March, 1921, the appellant took the vehicle in controversy in a trade, made with one McLaughlin, the maker of respondent's mortgage. It is undisputed that the vehicle so taken was a seven-passenger White touring car, model G. F. The only description in respondent's chattel mortgage which could possibly cover this car is contained in the words and figures: "5 1-ton White trucks, models G.B.B.E."
The undisputed evidence shows that the White truck, model G.B.B.E., is a four-cylinder machine, while the G.F. touring car has six cylinders; that the length of wheel base, size of wheels, style of clutch, character of springs, power of engine, speed gears, length of hood, and many other items are entirely different in the G.F. touring car from the corresponding parts in the G.B.B.E. truck--in addition to the fact that the body on the vehicle in controversy was distinctly a passenger car body, and in no sense a truck body.
The case was tried on the theory that the description was not sufficient to give constructive notice that the mortgage covered the car in controversy, but was sufficient to constitute a mortgage on the car, as between the parties to the mortgage, and that there was evidence to warrant submitting to the jury the question whether the appellant had notice of the mortgage sufficient to make the lien good as against the appellant corporation.
At the close of the evidence on respondent's direct case, and again at the close of all the evidence, appellant's counsel moved for the direction of a verdict in its favor. This motion stated several different grounds upon which appellant's counsel contend that a verdict should have been directed, but, from the view which this court takes of ihe matter in controversy, it will not be necessary to consider any of these contentions except the one that the description contained in the mortgage is not sufficient to create a mortgage lien upon the touring car in controversy.
The rule as to what will constitute a sufficient description to create a mortgage, good as between the parties thereto, has been stated and reiterated by the courts of practically all the...
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