Twin Falls Bank & Trust Co. v. Weinberg

• Decision Date: 21 May 1927
• Docket Number: 4481
• Citation: 44 Idaho 332,257 P. 31
• Court: Idaho Supreme Court
• Parties: TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent, v. A. L. WEINBERG and A. T. HARMON, Copartners Doing Business Under the Firm Name and Style of WEINBERG & HARMON, Appellants

257 P. 31

44 Idaho 332

TWIN FALLS BANK & TRUST COMPANY, a Corporation, Respondent, v. A. L. WEINBERG and A. T. HARMON, Copartners Doing Business Under the Firm Name and Style of WEINBERG & HARMON, Appellants

No. 4481

Supreme Court of Idaho

May 21, 1927

CHATTEL MORTGAGES-"PERSONAL PROPERTY"-"FRUCTUS INDUSTRIALES" PROPER CARE OF MARKETABLE CROPS-LIEN HELD VALID-EVIDENCE-LIABILITY OF PURCHASERS OF CROP.

1. Apple crop is personal property, within C. S., sec. 5326, not real property as defined by section 9456, and subject to chattel mortgage, in absence of statute; such crop being "fructus industriales," in that it requires annual pruning, spraying and cultivation, as differentiated from "fructus naturales," or crops produced by powers of nature alone.

2. It is common knowledge that apple and other fruit trees require annual pruning, spraying and cultivation in order to produce marketable crops.

3. That apple crop was to be grown but not sown in the future did not defeat lien of chattel mortgage thereon, under C. S., sec 6373, since mortgagor may mortgage future acquired property and lien of mortgage on crops to be grown in the future is valid when they come into existence particularly in view of legislative intention, as shown by Sess. Laws 1885, p. 74, Sess. Laws 1897, p. 7, that mortgages on future crops were not to be limited to kind described in statute.

4. Crop sown but not yet grown or harvested is proper subject of chattel mortgage, if mortgagor, at time of giving mort- gage, has ownership or right to continued possession of the soil, since he has the potential interest in crops grown.

5. Conflicting evidence in action against purchaser of mortgaged property as to understanding placed on mortgage by parties held to support finding that provision therein that mortgage covered all crops estimated to consist of approximately certain named crops included also apple crop not mentioned.

6. Primarily, the court must ascertain from chattel mortgage itself intention of parties, so far as possible, and give it effect.

7. In action against purchaser of mortgaged property by mortgagee testimony of mortgagor regarding inquiries made of him by defendant as to whether property was mortgaged held properly excluded, since mortgage, being duly recorded, was notice to purchasers.

8. Purchasers of apple crop covered by chattel mortgage are liable in conversion for reasonable value thereof.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action against purchaser of mortgaged property. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Sweeley & Sweeley, for Appellants.

"Chattel mortgages may be made upon all property, goods or chattels, not defined by statute to be real estate, upon growing crops, and upon crops to be sown and grown in the future." (C. S., sec. 6373.)

At common law a mortgage could not be given on property not actually in existence. (5 R. C. L., p. 403, sec. 27.)

Apples do not constitute a crop to be sown and grown. Whether they may in fact have been growing at the time the mortgage was executed is immaterial as the mortgage does not refer to crops then growing. The expression "growing crops" is not synonymous with "crops to be grown," and a mortgage covering growing crops does not cover a crop that had not been planted. (McCormick v. Farmers Grain & Milling Co., 51 Cal.App. 557, 197 P. 429.)

"At common law grasses growing from perennial roots are regarded as fructus naturales, and while unsevered from the soil, are considered as pertaining to the realty; and the same is true of the fruit of trees and perennial bushes growing from perennial roots." (8 R. C. L., p. 356, sec. 2.)

The word "crops" has a well-established meaning, being synonymous or equivalent to the common-law term "emblements" and neither of them included fruits or perennial trees or shrubs, and it is to be presumed that the term "crops" is used in the statute in the same sense. (Sparrow v. Pond, 49 Minn. 412, 32 Am. St. 571, 52 N.W. 36, 16 L. R. A. 103; State Mutual Ins. Co. v. Clevenger, 17 Okla. 49, 87 P. 583; Corey v. Struve, 16 Cal.App. 310, 116 P. 975; 8 R. C. L., p. 355, sec. 1, p. 356, sec. 2.)

Where a description in a chattel mortgage of "all household and personal effects" is followed by a specific description of the goods, the latter description limits the former to the property particularly described. (Kearney v. Clutton, 101 Mich. 106, 45 Am. St. 394, 59 N.W. 419.)

"'But' indicates the intention of those who use it to limit or restrain the sense or effect of something which had before been said, and is used only with a view of limiting or restraining the preceding language, and not with a view of enlarging it. " (Stonestreet v. Harrison, 15 Ky. (5 Litt.) 161; Leggett v. Firth, 132 N.Y. 7, 29 N.E. 950.)

"The word 'but' is significant of the purpose to be accomplished. It indicates what follows is an exception to that which has gone before and is not to be controlled by it." (Western Union Tel. Co. v. Harris (Tenn.), 52 S.W. 748.)

"Therefore what is said before the word 'but' does not control that which follows it." (Foreman v. School District, 81 Ore. 587, 159 P. 1155, 1168.)

The word "estimated" as it appears in the mortgage in connection with the specific terms of description is not to be construed as meaning the nature, kind or quality of the crops. It refers only to the quantity. (Biglione v. Bronge, 192 Cal. 167, 219 P. 69; Webster's International Dictionary; Century Dictionary.)

The dispute as to whether the apples were intended to be included in the mortgage should be resolved in favor of the mortgagors. A written contract should, in case of doubt, be interpreted against the party who has drawn the contract. (6 R. C. L., p. 854, sec. 242.)

Bothwell & Chapman, for Respondent.

Apples are "property" upon which a chattel mortgage can be made, under the provisions of C. S., sec. 6373. (C. S., sec. 9444; Bank of Roberts v. Olaveson, 38 Idaho 223, 221 P. 560; Wilkerson v. Thorp, 128 Cal. 221, 60 P. 679; 17 C. J. 380; Cottle v. Spitzer, 65 Cal. 456, 52 Am. Rep. 305, 4 P. 435; Reeves v. Hyde, 77 Cal. 397, 19 P. 685; Miller v. Kern County, 137 Cal. 516, 70 P. 549; 5 R. C. L. 355; 131 Am. St. 617, note; 23 L. R. A., N. S., 1218, note; Fritcher v. Kelley, 34 Idaho 468, 201 P. 1037; 11 C. J. 442; Adams v. Caldwell Mill. Co., 33 Idaho 677, 197 P. 723; Averill Mach. Co. v. Vollmer-Clearwater Co., 30 Idaho 587, 166 P. 253.)

The finding of fact of the trial judge made on conflicting evidence will not be disturbed on appeal. (Larsen v. McKenzie, 41 Idaho 715, 241 P. 607.)

"Chattel mortgages may be made upon all property, goods or chattels, not defined by statute to be real estate, upon growing crops, and upon crops to be sown and grown in the future." (C. S., sec. 6373.)

"If a chattel mortgage may be given upon crops to be thereafter sown or caused to be sown, and the crops be thereafter sown, a previous chattel mortgage covering such crops would be valid and enforceable under the provisions of C. S., sec. 6373." (Bank of Roberts v. Olaveson, supra.)

"The word 'crop' taken in its most comprehensive sense, includes fruits grown on trees." (Cottle v. Spitzer, 65 Cal. 456, 52 Am. Rep. 305, 4 P. 435; Reeves v. Hyde, 77 Cal. 397, 19 P. 685.)

"A crop of fruit requiring periodical expense, industry and attention in its yield is subject to execution as personal property." (8 R. C. L. 355, 356, 357; 131 Am. St. 617, note, and 23 L. R. A., N. S., 1218.)

"Fructus industriales belong to the one who, while in possession of the land, has raised them and severed them from the land itself, although it turn out that his possession was without right as against the true owner of the land." (Fritcher v. Kelley, 34 Idaho 468, 201 P. 1037.)

"A crop is a proper subject of written mortgage at any time after the seed has been planted and irrespective of the amount of labor necessary to be performed by the mortgagor before the fruit of his labor may be reaped. . . . A crop is held to be a growing one from the time when the seed is placed in the ground." (11 C. J. 442.)

"Chattel mortgages may be made upon growing crops and upon crops to be sown or grown in the future. When duly recorded, such a mortgage is notice to all persons claiming to have acquired rights in or to the mortgaged crop through or under the mortgagor subsequent to the recording of the mortgage." (C. S., sec. 6373; Shields v. Ruddy, 3 Idaho 148, 28 P. 405; Pierce v. Langdon, 3 Idaho 141, 28 P. 401; McConnell v. Langdon, 3 Idaho 157, 28 P. 403; Adams v. Caldwell Mill Co., 33 Idaho 677, 197 P. 723; Averill Mach. Co. v. Vollmer-Clearwater Co., 30 Idaho 587, 166 P. 253.)

"The word 'estimate' precludes accuracy, and its ordinary meaning is to calculate roughly or to form an opinion from imperfect data, and the word 'estimate' has no more certainty than the term 'about.'" (Bautovitch v. Great Southern Lumber Co., 129 La. 857, Ann. Cas. 1913B, 848, 56 So. 1026, citing 2 Words & Phrases, p. 2493.)

"Findings of fact made by the trial judge, based on conflicting evidence, will not be disturbed, if the evidence in support of such findings, if uncontradicted, is sufficient to sustain the findings." (Larsen v. McKenzie, 41 Idaho 715, 241 P. 607.)

VARIAN, Commissioner. Johnson, Brinck, CC., Wm. E. Lee, C. J., Budge, Taylor and T. Bailey Lee, JJ., concurring. Givens, J., concurring in part and dissenting in part.

OPINION

VARIAN, Commissioner.--

This action is brought by respondent against appellants to recover the value of an apple crop purchased by appellants from one W. A. Claudin, October 15, 1921. In order to secure a promissory note for $ 1,478.74 and interest, on ...