Cooper v. McKee

121 Ky. 287 | Ky. Ct. App. | 1905

Opinion by

Chief Justice Hobson

Affirming.

K. R. McKee and W. H. Pool, previous to July 23, 1903, were partners in a livery stable at Cadiz, Ky. On that day McKee sold out to Pool for $1,250, and took five notes, each for $250, payable in 6, 9, 12, 15, and 18 months, secured by a mortgage on the horses and vehicles in the livery stable. Pool did not pay his notes, and McKee, on September 22, 1904, filed this suit against him and J. E. Cooper, to whom Pool had sold three of the mortgaged horses. The court enforced the mortgage, adjudging that Cooper took no title to the three horses sold him. Cooper was directed to deliver the horses to the court’s commissioner, or, if the horses were not to be had, that he pay their value, which was fixed at $225 for all three of them. From this judgment Cooper appeals.

It is insisted for him that the plaintiff’s petition is insufficient. The petition is in these words. “The plaintiff, K. R. McKee, says that on the 23d day of July, 1903, the defendant, W. H. Pool, became indebted to him in the sum of $1,250, and executed to him his five several notes due in 6, 9, 12, 15 and 18 months, respectively, and simultaneously with the making of said debts, and in order to secure the plaintiff, the said W. H. Pool made and executed to him a mortgage on the following personal property: (Here follows description of property.) No part of said debts above have been paid,” etc. This petition is bad on demurrer. When a writing is sued on, it must be set out in the pleading in its words, or according to its legal effect; that is, in a suit on a note it must be alleged that by the writing the defendant-promised to pay the plaintiff a certain sum of money at a certain time, or the note must be copied in the-petition, so that the petition on its face will show the-contract relied on.

The allegation that the defendant became indebted is a mere conclusion of law. So is the allegation that the defendant executed a mortgage; for whether-the paper was a mortgage or not is a question of law, to be determined from its terms. Regularly,, either the mortgage should be copied in the petition, or the effect of the instrument should be set up as in the ease of a note. (Creech v. Abner, 106 Ky., 239, 20 Ky. Law Rep., 1812, 50 S. W., 58, and cases cited.) But no demurrer.was filed to the petition,, and Pool filed an answer, which cured all the defects in the petition. The answer of Cooper is also to the-same effect. After judgment on the merits, the defects in the petition are not available on appeal.

It is insisted for Cooper that by the terms of the-mortgage Pool was authorized to - sell the mortgaged property. The language of the mortgage relied on. is as follows: “It is agreed and understood, and made a part of .this mortgage, that the mortgagor-hereby reserves the right to swap or exchange any horse herein named for other horse or horses, and any horse or other property received by me in lieu of,, or exchange for, any property herein mentioned, said property so received shall take the place of the property herein mentioned that may be so disposed of, and to be covered by this mortgage and subject to the payment of the notes herein mentioned, the same-as if originally embraced herein.” It is earnestly insisted for appellant that as Pool had the right to exchange the horses or swap them for other property, he was authorized to sell the horses, as a sale is but an exchange of property for money. This position, "while plausible, can not be maintained. It is well settled that authority to sell property is not authority to exchange it for other property. (Woodward v. Jewell, 140 U. S.,247, 11 Sup. Ct., 784, 35 L. Ed., 478, and cases cited.) The rule rests upon the ground that the delegated power must be strictly followed, and applies no less where a sale is made of property when the authority is . limited to make an exchange. McKee, having confidence in Pool’s judgment of horses, might be willing to risk him to swap off the mortgaged horses for other horses, when he would not be willing to risk him with the power to sell the horses for money, which might be put in his pocket and could not be traced or identified. Money will slip through a man’s fingers often when he does not intend to do injustice to the rightful owner. The power to sell for money, and the power to exchange the horses for other horses, were very different things. The former would hazard the security of the mortgagee much more than the latter. The power conferred is not to be extended by construction beyond the fair terms of the instrument. We therefore conclude that Pool was without authority to sell the horses to Cooper under the terms of the mortgage.

It is further insisted for Cooper that McKee consented to the sale of the horses by Pool. On this subject the evidence is conflicting, and we can not say that the chancellor’s judgment is against the weight of the evidence, or that under the evidence the chancellor erred in sustaining the specific attachment which McKee had sued out. The fact that Cooper bought the horses, when sold in Hopkinsville at a sale stable, adds nothing to his title. Were, the rule otherwise, mortgages on this class of property could always be defeated.

The form of the judgment was not substantially prejudicial to Cooper. It is not a judgment upon the bond which he executed, hut is simply.a judgment, against him.

Judgment affirmed.