Wertz v. Barnard
| Decision Date | 19 March 1912 |
| Citation | 122 P. 649,32 Okla. 426,1912 OK 280 |
| Parties | WERTZ v. BARNARD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The power of a mortgagee, under a clause in a chattel mortgage providing that the mortgagee may take possession of the mortgaged property, before the mortgage debt is due, when he deems himself insecure, cannot be arbitrarily used by the mortgagee; but must be based upon probable cause or reasonable grounds for apprehension.
Instructions examined, and held to substantially state the law applicable to the case, where the question was as to the right of a mortgagee to take possession of the property when he deems himself insecure.
(Additional Syllabus by Editorial Staff.)
Instructions on defendant's damages in the event he prevails are immaterial, where he does not prevail.
In an action by a mortgagee for possession of the cattle mortgaged instructions that if defendant had sold any of the cattle, or had told plaintiff he had sold a portion of them, a demand before suit was not necessary, and, if they found the converse, a demand was necessary, were sufficiently favorable to defendant.
In replevin by a mortgagee, where the jury's answers to special interrogatories exonerated plaintiff from responsibility for the manner in which the sheriff, in executing the writ, handled the mortgaged cattle, the inconsistency in answers as to the care exercised by the sheriff does not affect plaintiff nor a general verdict in his favor.
Commissioners' Opinion, Division No. 2. Error from Wagoner County Court; W T. Drake, Judge.
Action by John M. Barnard against Benjamin F. Wertz. Judgment for plaintiff, and defendant brings error. Affirmed.
Watts & Watts, of Wagoner, for plaintiff in error.
W. O Rittenhouse, of Wagoner, for defendant in error.
This is a suit in replevin. It was commenced on the 12th day of September, 1908, by John M. Barnard, defendant in error, plaintiff below, against Benjamin F. Wertz, plaintiff in error, defendant below, by petition and affidavit in replevin. Hereafter we will refer to the parties as they were known in the trial court. After issues joined, the cause was on October 7, 1909, tried to a jury, who made a special finding of facts, and they returned the same with a general verdict in favor of the plaintiff below. After motion for a new trial filed, overruled, and exceptions saved, this cause is brought here to review certain alleged errors of the trial court.
The plaintiff in error assigns and urges here as error of the court the giving to the jury of instructions numbered 4, 6, 6 1/2, 7, 9, and 10; the refusal to give instruction No. D, asked by the plaintiff in error; the giving of repeated favorable instructions against plaintiff in error; and because of inconsistent and contradictory answers to special interrogatories 5 and 6.
In this cause the record shows that the plaintiff was the owner of and held a chattel mortgage on the property taken under the writ; that the debt secured by the mortgage was not due at the time the property was taken. The bringing of the action before the debt was due under the mortgage was based upon what is generally known as an "insecurity" or "danger" clause contained in the mortgage as follows: "That if the mortgagee at any time deems himself insecure he may without notice or demand take possession of the property and foreclose the mortgage." It appears from the record that after filing the suit, but prior to the trial thereof, that the defendant below had paid the amount of the mortgage debt; therefore, the contest between the parties reduced itself to the question as to whether or not under the terms of the mortgage and the evidence adduced the plaintiff below had the right to take possession of the property under the writ at the time it was done, and, if not, then what amount of damages, if any were sustained by the defendant below, because of the wrongful taking. Instruction No. 4 complained of is as follows "The jury are instructed that if you believe from the evidence that the defendant, Wertz, told the plaintiff, Barnard, that he had sold any portion of the cattle included in plaintiff's mortgage, and that the plaintiff in this case felt himself insecure, and that he brought this action in good faith and upon probable cause, and that in all things he acted in good faith, your verdict should be for the plaintiff for the possession of the property in controversy." It is urged against this instruction that in its reference to the evidence it invades the province of the jury. To determine whether this instruction is erroneous, it is necessary to, first, determine the rights of a mortgagee under the particular clause in the mortgage above referred to, and upon which the right of action in this case is based. This clause or one of similar import is frequently found in this class of mortgages, and its interpretation has often been before the courts, and the decisions upon it are in conflict. Kansas, Ohio, and some other states have held that under such a clause the mortgagee may take possession of the property, if he deems himself insecure, and that it is immaterial whether he bases his belief upon good cause or not; the material fact being that he does so believe. Thorp v. Flemming, 78 Kan. 237, 96 P. 470, 19 L. R. A. (N. S.) 915, 130 Am. St. Rep. 366; Francisco v. Ryan, 54 Ohio St. 307, 43 N.E. 1045, 56 Am. St. Rep. 711. But the weight of authority requires that such right must be exercised in good faith, based upon such reasonable apprehension of danger that would cause a reasonable man to act. The Supreme Court of the territory of Oklahoma has followed the latter rule in First National Bank v. Teat, 4 Okl. 454, 46 P. 474, and in Brook v. Bayless, 6 Okl. 568, 52 P. 738. In the last case cited the court in discussing the Teat Case, supra, and in approving the doctrine therein announced, say: ...
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