Stoddard v. Ploeger

• Decision Date: 30 June 1926
• Citation: 42 Idaho 688,247 P. 791
• Parties: T. L. STODDARD and C. E. BYRUM, Respondents, v. ALBERT PLOEGER, Appellant, And BURLEY NATIONAL BANK, Defendant
• Court: Idaho Supreme Court

247 P. 791

42 Idaho 688

T. L. STODDARD and C. E. BYRUM, Respondents, v. ALBERT PLOEGER, Appellant, And BURLEY NATIONAL BANK, Defendant

Supreme Court of Idaho

June 30, 1926

CHATTEL MORTGAGES - AFTER-ACQUIRED PROPERTY - DESCRIPTION OF PROPERTY-CLAIM AND DELIVERY-DELIVERY BOND-EVIDENCE AS TO VALUE OF PROPERTY-GENERAL AND SPECIAL DAMAGES.

1. Under C. S., sec. 6383, purchaser at mortgage sale of property acquired by mortgagor subsequent to date of mortgage, and mortgaged to another by unrecorded mortgage acquired no interest therein within section 6375, making unrecorded mortgages void as to subsequent purchasers.

2. Purchaser at mortgage sale under chattel mortgage not intended to cover after-acquired property may not claim property subsequently acquired by mortgagor.

3. Strictness of rule as to definiteness of description in chattel mortgage is applied only between mortgagee and attaching creditors, subsequent encumbrancers, and purchasers in good faith, for value, and not in favor of earlier mortgagee of other property, or purchaser at his sale.

4. "Chattel mortgage" is a lien on specific personal property.

5. Where, at time of filing suit in claim and delivery for possession of property, property was delivered on delivery bond and no redelivery bond was filed, it was not necessary to submit evidence as to value of property, as jury was not required to find value.

6. Expenses for automobile hire and value of time spent in locating and obtaining possession of property sought to be recovered as damages for detention of property are special damages, not recoverable unless alleged.

7. "General damages" are immediate, direct, and proximate result of act complained of, and are provable under general allegation.

8. "Special damages" are damages which, although natural, are not necessary consequence of act, and are not recoverable unless specially pleaded.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. T. Bailey Lee, Judge.

Action in claim and delivery. Judgment for plaintiffs. Modified with directions.

S. T Lowe and T. M. Morris, for Appellant.

The mortgage held by the plaintiffs was void, as against the defendants. The defendant was not a party to the mortgage but was a purchaser of the property at the foreclosure sale of a creditor, and therefore stood in the same position as the creditor of the Weatherlys. (16 R. C. L., p. 138, secs. 101, 102.)

The description of the property included within the mortgage was not sufficient to enable a third person aided by inquiries which the instrument itself suggests, to identify the property purported to be described in the mortgage, and the same was therefore void. (Sigel Campion Livestock Commission Co. v. Holly, 44 Colo. 580, 101 P. 68; McConnell v. Langdon, 3 Idaho 157, 28 P. 403; Pierce v. Langdon, 3 Idaho 141, 28 P. 401; Walker v Fitzgerald, 157 Minn. 319, 196 N.W. 269, 197 N.W. 259.)

Special damages are such as actually result from the commission of a wrong but are not such a necessary result as will be implied by law, and must be specially pleaded. (Duck Lee v. Boise Dev. Co., Ltd., 21 Idaho 461, 122 P. 851; Tucker v Palmberg, 28 Idaho 693, 155 P. 981; Kirk v. Madareitc, 32 Idaho 403, 184 P. 225; Lessman v. Anschustigui, 37 Idaho 127, 215 P. 460.)

H. V. Creason and Harmon E. Hosier, for Respondents.

A purchaser at foreclosure sale obtains only such title to property as mortgagor held under the mortgage when property is sold at foreclosure sale. (Dixon v. Ladd, 32 S.D. 163, Ann. Cas. 1916A, 253, 142 N.W. 259, C. S., sec. 6383.)

A creditor or third party in order to defeat a nonrecorded mortgagee's right, must be a creditor who has obtained a lien on the property by attachment or other judicial process. (Folsom v. Peru Plow & Implement Co., 69 Neb. 316, 111 Am. St. 537, 95 N.W. 635; Dexter v. Citizens' Nat. Bank, 4 Neb. (Unof.) 380, 94 N.W. 530; Reiss v. Argubright, 3 Neb. (Unof.) 756, 92 N.W. 988; Gray v. Doty, 77 Kan. 446, 94 P. 1008; Youngberg v. Walsh, 72 Kan. 220, 83 P. 972.)

Where the verdict of the jury is for the plaintiff in an action of claim and delivery, and plaintiff gave bond and obtained possession of the property, and the defendant did not put up a redelivery bond, there is no need of evidence being submitted by the plaintiff to show the value of the property to support the verdict. (Carruthers v. Hensley, 90 Cal. 559, 27 P. 411; Erreca v. Meyer, 142 Cal. 308, 75 P. 826.

A chattel mortgage is a lien upon specific personal property. (First Nat. Bank v. McIntosh & Peters Livestock Commission Co., 72 Kan. 603, 84 P. 535; Dixon v. Ladd, 32 S.D. 163, Ann. Cas. 1916A, 253, 142 N.W. 259.)

BAUM, Commissioner. Wm. E. Lee, Givens and Taylor, JJ., concur.

OPINION

BAUM, Commissioner

This is an action in claim and delivery instituted by the plaintiffs T. L. Stoddard and C. E. Byrum, respondents herein, to recover of and from the defendants, the Burley National Bank and Albert Ploeger, the last named being the appellant herein, the possession of certain livestock, alleged to be of the value of $ 300, together with the additional sum of $ 150 damages for the wrongful detention thereof. The action was originally filed in the probate court, resulting in judgment for Stoddard and Byrum, against the defendant Ploeger; thereafter defendant Ploeger appealed to the District Court and upon a trial de novo, judgment was had in favor of respondents Stoddard and Byrum, for the return of the property and in case its return could not be had, the sum of $ 300 as the value thereof and damages in the sum of $ 50, for the wrongful detention of the property, from which judgment this appeal is taken.

One R. W. Weatherly and wife, on the 27th of December, 1919, executed and delivered to the Burley National Bank their certain chattel mortgage upon certain cattle, none of which are involved in this action. The last-mentioned mortgage was given to secure payment of a $ 2,600 note. This mortgage was acknowledged February 27, 1920, and was thereafter duly filed for record in the proper county. Thereafter and on the 5th day of April, 1920, the respondents herein sold to said Weatherly twenty cows and three calves for the sum of $ 1,200, and to evidence the purchase price Weatherly and wife executed to the respondents herein their promissory note in the sum of $ 1,200, and to secure the payment thereof made, executed and delivered a chattel mortgage covering the property so sold.

The note in favor of the Burley National Bank became due November 1, 1920, and the note to respondents herein became due on October 15, 1920.

The mortgage to the respondents herein was not recorded until October 29, 1920.

Some time prior to the 22d day of October, 1920, Weatherly and wife departed for parts unknown, and on the last-mentioned day, the Burley National Bank, prior to the due date of its note, commenced foreclosure proceedings by affidavit, notice and sale, and certain cattle including those in controversy were sold to appellant Albert Ploeger, who was during all of the times mentioned herein, the president of the Burley National Bank.

The purchase price of the cattle so purchased by Weatherly from respondent being due and unpaid, the respondents herein as mortgagees in the mortgage executed by Weatherly and wife to themselves, bring this action for the possession of the property.

Although appellant specifies eighteen assignments of error, I shall take such of the assignments as are deemed necessary to a determination of the material issues in the case, namely; that the mortgage executed by Weatherly and wife to respondents was void by reason of the indefinite, uncertain and insufficient description of the property sought to be mortgaged; that the mortgage was not filed for record until a time subsequent to the foreclosure by the Burley National Bank; that no evidence was introduced as to the value of the chattels sought to be recovered from which the jury could determine or fix the value of the cattle sought to be recovered, and that there was no competent evidence submitted by the plaintiffs of any damages suffered by reason of the detention of the cattle, by the appellant.

An examination of the record discloses conclusively that the cattle in controversy were part of the cattle sold by the respondents to Weatherly on April 5, 1920, appellant in fact, in certain of his assignments admits that such is the fact and that he became the purchaser of the cattle in controversy at the foreclosure sale under the mortgage in favor of the Burley National Bank, and that his right to possession was acquired as such purchaser. Appellant relies upon the provisions of C. S., sec. 6375, which provides in part, as follows:

"A mortgage of personal property is void as...