Williams v. Rorer

• Decision Date: 31 August 1842
• Citation: Williams v. Rorer, 7 Mo. 556 (Mo. 1842)
• Parties: WILLIAMS v. RORER.
• Court: Missouri Supreme Court

7 Mo. 556

WILLIAMS

v.RORER.

Supreme Court of Missouri.

August Term, 1842.

ERROR TO THE HOWARD CIRCUIT COURT.

CLARK and WRIGHT, for Plaintiff.

DAVIS, for Defendant.

SCOTT, J.^a1

Williams commenced his action against Rorer, in a justice's court, for fifty dollars, part of the supposed yalue of a mare which Williams alleged he had pawned to Rorer. It seems Williams executed and delivered to Rorer an absolute bill of sale for the mare. The instrument was under seal. The mare was delivered at the date of the bill of sale. Rorer delivered to Williams an instrument, of which the following is a copy:

“This is to certify that I am willing that Benjamin Williams may redeem the Uncas mare, by refunding me one hundred dollars, any time between this and the first day of June, and if not, she is my property in full. Given under my hand this third day of March, 1840.

GERMAN A. RORER.”

It was proved that Rorer sold the mare to one of his neighbors, but on condition, that if Williams made application to redeem her before the first day of June, she should be returned to Rorer, to enable him to comply with his undertaking to Williams. Williams tendered the money to Rorer on the first day of June, and was told by him that he was one day too late. The tender was in bank notes. There was contradictory testimony as to the value of the mare, some of the witnesses believing she was worth one hundred dollars, the price paid for her, and some of them thinking she was worth more. Rorer obtained judgment, and Williams sued out his writ of error.

It was contended in the Circuit Court, by Rorer, that the transaction amounted to a mortgage, or to a conditional sale, and consequently that the plaintiff was not entitled to recovcr, not having tendered the money within the time agreed on by the parties. Of this opinion was the court, and instructed the jury accordingly.

On the other hand it was insisted, that the agreement between the parties constituted a pledge, and that consequently the plaintiff had a right to redeem the mare after the lapse of the time appointed by the parties for her redemption, and that even if such was not the law respecting the redemption of a pledge, yet Rorer having sold the mare before the time for redemption had passed, Williams was released from all obligation to tender the debt. The court refused instructions embodying this view of the subject.

There is a distinction between a mortgage and a pledge, which is well ascertained both in the English and American law. A mortgage of goods differs from a pledge in this, that the former is a conveyance of title upon condition, and it becomes an absolute interest at law, if not redeemed by the prescribed time; and it may be valid without delivery. A pledge, or pawn, is a deposit of goods, with a right of redemption, on prescribed conditions. Delivery accompanies a pledge, and is essential to its existence. Only a special property passes to the pledgee; while the general property remains with the pledger. Cortleyou v. Lansing, 2 Caine's Cases.

The bill of sale from Williams to Rorer is absolute on its face, and conveys the general property to him; there is nothing in it or the subsequent agreement, which shows that Williams intended merely a delivery of the mare to be kept for the security of a debt. If the general property passed, then the transaction is a mortgage, and not a pledge. In the case of Desloge and Rosier v. Ranger, 7 Mo....