Smythe v. Muri
| Decision Date | 22 May 1916 |
| Citation | 158 N.W. 264,34 N.D. 242 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Pierce County, A. G. Burr, J.
From an order denying plaintiff's motion for a new trial, he appeals.
Reversed.
Reversed and remanded. Appellant recovered his costs of the appeal.
Victor Wardrope (Cowan & Adamson and H. S. Blood, of counsel), for appellant.
A mortgagee of personal property has the right of possession at any time, under a mortgage which provides that the mortgagee may take possession "whenever it may choose to do so," upon exercising such right. Jones, Chattel Mortg. p. 191; Russell v. Fillmore, 15 Vt. 130; Comp. Laws 1913, §§ 6740; 6758; Wells v. Chapman, 59 Iowa 658, 13 N.W. 841; Rich v. Milk, 20 Barb. 616.
Where the mortgage contains the usual "insecure clause," the mortgagee may take possession. 7 Cyc. 13, and cases cited.
The mortgagee's right to possession came into existence, in any event, before the trial of the action, and at the time of trial the mortgagee was entitled to possession. Therefore verdict and judgment on trial in favor of the mortgagor were and are contrary to law. See Deal v. D. M. Osborne & Co. 42 Minn. 102, 43 N.W. 835.
Even if defendant had been entitled to a verdict for possession, the alternative part of the verdict should have been only for the value of defendant's interest therein, and not for the full value of the property. Code, § 7635; 7 Cyc. 17, and cases cited; Lovejoy v. Merchants' State Bank, 5 N.D. 623, 67 N.W. 956, and cases there cited; Force v Peterson Mach. Co. 17 N.D. 220, 116 N.W. 84; Comp. Laws 1913, §§ 6721, 7635; Angell v. Egger, 6 N.D. 391, 71 N.W. 547; Wadsworth v. Owens, 17 N.D 173, 115 N.W. 667; Deal v. D. M. Osborne & Co. 42 Minn. 102, 43 N.W. 837; Cushing v. Seymour, S. & Co. 30 Minn. 301, 15 N.W. 249; Torp v. Gulseth, 37 Minn. 135, 33 N.W. 550.
Where the complaint sets forth an indebtedness in a certain amount, a general denial simply denies the same in the amount set forth. Callanan v. Williams, 71 Iowa 363, 32 N.W. 383; Dillon v. Spokane County, 3 Wash. Terr. 498, 47 P. 889; Higgins Carpet Co. v. Latimer, 165 Pa. 617, 30 A. 1050; Edgerton v. Power, 18 Mont. 350, 45 P. 204; Hall v. Huffman, 32 Mo. 519.
W. M. Anderson, for respondent.
After the execution of a chattel mortgage, the mortgagor may agree to a change of possession of the property without a new consideration. This means that when the mortgage is made, the mortgagor is entitled to the possession of the property. A mortgagee cannot take possession whenever he may choose to do so. Comp. Laws 1913, § 6740; Humpfner v. D. M. Osborne & Co. 2 S.D. 310, 50 N.W. 89; 7 Cyc. 12 b; Nash v. Larson, 80 Minn. 458, 81 Am. St. Rep. 272, 83 N.W. 451.
Complaint as to instructions cannot be made where, before they were given, they were submitted to counsel for both parties for inspection and examination, and no objection was made, or request for further or other instructions. State v. Fujita, 20 N.D. 555, 129 N.W. 360, Ann. Cas. 1913A, 159; Speer v. Phillips, 24 S.D. 257, 123 N.W. 722.
No question not presented to the lower court in some form at the trial, and some ruling had thereon, can be raised on appeal. McCabe v. Desnoyers, 20 S.D. 581, 108 N.W. 341; Hatcher v. Northwestern Nat. Ins. Co. 106 C. C. A. 225, 184 F. 23; Poirier Mfg. Co. v. Kitts, 18 N.D. 556, 120 N.W. 558.
Nor will a judgment be disturbed or reversed on any theory not advanced and relied upon in the trial court. McPherson v. Julius, 17 S.D. 98, 95 N.W. 428; Delaney v. Western Stock Co. 19 N.D. 630, 125 N.W. 499; also Houghton Implement Co. v. Vavowski, 19 N.D. 594, 125 N.W. 1024.
Plaintiff, as trustee in bankruptcy of the Hilmen Mercantile Company, brought this action to recover the possession of certain personal property covered by a chattel mortgage given by defendant to such company. The action was instituted in June, 1913, and the promissory notes, aggregating the sum of $ 2,700, which were secured by such mortgage, were on their face not due until October 1, 1913. In his complaint plaintiff asserted his right to the immediate possession of the securities under the usual insecurity clause in the mortgage authorizing the mortgagee to take possession and foreclose whenever it deemed itself unsafe or insecure. The mortgage contains other stipulations authorizing the mortgagee, for stated reasons, to accelerate the due date of the indebtedness at its option; but neither by the complaint nor the proof are such grounds relied on, and we for that reason do not consider them. The sole theory upon which the case appears to have been tried by plaintiff in the lower court is that the mercantile company as such mortgagee had reason to deem, and in fact did in good faith deem, said debt unsafe and insecure, and acting on the authority given in the mortgage it elected to treat the indebtedness as due, and to foreclose its mortgage; the object of this action being to recover possession of the chattels for the purpose of such foreclosure. Indeed the only issue contested at the trial was plaintiff's right to proceed under such insecurity clause, and under the well-settled rule of this court the parties will not be permitted to now raise other questions or to advance new theories.
The cause was not tried until about February 1st, 1915, being sixteen months after the maturity of the debt. The jury found in defendant's favor, and in accord with the court's instructions returned a verdict finding that he is entitled to the possession of the property described in the complaint, and fixing the value, at the time of the taking by the plaintiff, at the sum of $ 1,100. This, in the face of the established fact that the Mercantile Company at that time held a past-due mortgage thereon upon which there was owing a sum considerably more than double the value of such chattels. Upon such verdict a money judgment was ordered and entered in defendant's favor for $ 1,100 and costs.
Plaintiff moved for a new trial on the grounds of insufficiency of the evidence to sustain the verdict and that the verdict is against law; also errors in law occurring at the trial, which motion was denied, and the appeal is from the order denying such motion. We are agreed, for reasons hereinafter stated, that the learned trial court erred in denying such motion. Briefly stated, our reason for this conclusion is that the verdict is clearly against law. In the light of the above facts the verdict and judgment are manifestly unjust and inequitable, and cannot be sustained. Conceding, as was found by the jury, that plaintiff was not, at the date of the commencement of the action, entitled to the possession of these chattels, still at the date of the trial it was established beyond peradventure that he was entitled to such possession, and in view of the fact that the indebtedness far exceeded the value of such personalty, the only proper verdict and judgment which could have been rendered in defendant's behalf was for such damages as he may have sustained for the unlawful detention of the property up to October 1, 1913, the maturity of the mortgage debt, and the costs of the action. This is too firmly settled to be now open to serious controversy. See McDonald v. Schantz, 44 Okla. 648, 146 P. 36; Brook v. Bayless, 6 Okla. 568, 52 P. 738; Deal v. D. M. Osborne & Co. 42 Minn. 102, 43 N.W. 835; Chase Bros. Piano Co. v. Conners, 182 Ill.App. 418; Farwell v. Hanchett, 120 Ill. 573, 11 N.E. 875; Wildman v. Radenaker, 20 Cal. 615; Angell v. Egger, 6 N.D. 391, 71 N.W. 547; Cobbey, Replevin, 2d ed. §§ 1124 and 1148, and cases cited. See also note to Steidl v. Aitken, 30 N.D. 281, L.R.A. N.S. 1915E 192, 152 N.W. 276; and State Bank v. Hurley Farmers Elevator Co., 33 N.D. 272, 156 N.W. 921.
We quote from McDonald v. Schantz, 44 Okla. 648, 146 P 36, as follows: ...
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