Byram v. Gordon

11 Mich. 531 | Mich. | 1863

Manning J.:

This is an action of trover, brought by defendants in error for a quantity of lumber. To make out their title to the lumber they gave in evidence a chattel mortgage from Lee & Hillson, and also an agreement between themselves and Lee 3s Hillson for a sale by them to Lee <fc Hillson of a quantity of logs. This evidence was excepted to, and the ease is before us on the, exceptions.

The agreement bears date 30th June, 1860. By it defendants in error were - “to go on and deliver all the whitewood, oak, maple, ash and black walnut logs, belonging to them and now (then) in Lake St. Clair,” at the mill and boom of Lee & Hillson in Hamtramck. And Lee and Hillson were to pay them $100 on the execution of the agreement, which sum the agreement states with previous payments would make $350 paid by them on account of logs delivered, and they were to pay $80 per week until full payment should be made for all logs delivered or which should be delivered under the contract. The logs to be paid for at the following rates: maple logs at the rate of five dollars per thousand feet, and other logs at the rate of five dollars and seventy-five cents per thousand feet.

The mortgage bears even date with the contract, and by it Lee & Hillson bargain and sell to defendants in error “all the logs, lumber, stock and materials of any and every kind, now in, or which during the continuance of this mortgage shall be in the boom and mill yard of the said parties of the first part during the performance of the conditions hereinafter stated, and especially all the logs, and the lumber made of said logs, which have been or shall be delivered by the parties of the second part to the parties of the first part,” &c. “It being the object of the parties of the first part to secure to the parties of the second part the payment of the logs delivered and to be hereafter delivered to them by the parties of the second part under an agreement already existing between them.” Conditioned “that if the said parties of the first part shall and do well and truly pay or cause to be paid, to the parties of the second part, the sum of $80 per week during the time of the delivery of logs to them by the parties of the second part, and until all logs delivered or to be delivered under said agreement shall be paid for at the following rates; maple logs at the rate of $5 per thousand feet, and all other logs at the rate of $5.'IS per thousand feet, then these presents and any matter therein mentioned shall cease and.be null and void.”

The uncertainty of the mortgage in not stating the sum of money secured by it, and the time -within which it is to be paid, and the fact that a copy of the agreement was not filed with the mortgage, are the objections to the evidence.

It is not necessary to the validity of a mortgage as to third persons, that it should be for the payment of any certain sum of money, or of any money whatever. It may be for the performance of any other act, or of any contract by the mortgagor, or by a third person, as well as for the payment of money. And when no time is specified for the performance of such act or contract in the agreement itself, the law steps in and requires it to be performed within a reasonable time. Such omission does not vitiate the con" tract.

The agreement is no part of the mortgage. The two instruments are separate and distinct contracts; as much so as a promissory note and mortgage. It was necessary to prove the agreement to give effect to the mortgage, but there is nothing in the statute requiring a copy of it to be filed with the mortgage to render the later operative against third persons.

The judgment is affirmed, with costs.

The other Justices concurred.