53 P. 268 | Idaho | 1898
— This is an action brought for an accounting, for the setting aside oí a sale under a chattel mortgage, and for declaring a deed absolute upon its face to be a mortgage. The facts, as alleged in the complaint, are substantially as follows: In the month of March, 1891, plaintiff and two of the defendants, Ole Edwardson and Ole 0. Edwardson, entered into a copartnership, for the purpose of engaging in the business of manufacturing lumber and doing a general sawmilling business, under the firm name and style of Felland, Edwardson & Son. In the course of their business, and between said month of March, 1891, and the third day of March, 1894, said firm had become indebted to the defendants the Yollmer Milling and Mercantile Company in the amount of $2,500, which indebtedness was evidenced by divers promissory notes executed by said firm to the said Vollmer Milling and Mercantile Company, which notes were secured by a chattel mortgage executed by said firm to said Vollmer Milling and Mercantile Company upon certain personal property described in the complaint. That all of said notes secured by said mortgage became and were due long prior to March 3, 1894. Said notes were further secured by a mortgage upon real estate described in the complaint, executed by said firm, or the members thereof. That all of said notes so secured became and were due long prior to March 3, 1894. The complaint alleges the property covered by the chattel mortgage to be of the value of $6,000, and that the real estate is of the value of $2,000. The complaint further alleges that some time prior to March 3, 1894, the said Vollmer Milling and Mercantile Company entered into an agreement with Ole Edwardson, one of the defendants, and a member of said-firm of Felland, Edwardson & Son, by which it was agreed that the said mortgagee should, for the purpose of cheating and defrauding the plaintiff, foreclose said chattel mortgage, and at the sale thereunder bid in the property covered thereby for the use and benefit of said Ole Edwardson. The complaint further alleges that it was also agreed between said parties that unless the firm of Felland, Edwardson & Son should deed the property described in the real estate mortgage to the Vollmer Milling and Mercantile Company, the said real estate mortgage
It further appears from the complaint that, as an additional security for the sum owing from the firm of Felland, Edward-son & Son to the Yollmer Milling and Mercantile Company, the firm had assigned to said Yollmer Milling and Mercantile Company certain notes and accounts, the property of said firm. By an order of the court this matter was submitted to a referee, who reported to the court that the sum of $601.79 had been collected by the Yollmer Milling and Mercantile Company upon said notes and accounts, which sum was credited upon the indebtedness of said firm to said Yollmer Milling and Mercantile Company. It is also alleged in the complaint that after the sale under the chattel mortgage the Yollmer Milling and Mercantile Company, mortgagee in the real estate mortgage referred to as executed to them by the said firm, threatened to foreclose the same, and by means of said threats induced the members of said firm, to convey to said mortgagees, by deed, the real estate described in said mortgage; said Yollmer Milling and Mercantile Company, at the time of the execution of' such deed, giving to said firm an instrument in the following words, viz.:
“Yollmer, Idaho, March, 1894.
“This is to certify that we do hereby agree to sell to and give to Felland, Edwardson & Son, or either of them, a warranty deed to lot four (4), section three (3), township thirty-nine (39) north, range 3, W. B. M., any time within eight (8) months from date; provided, we are at that time in possession of said lot of land; and provided, further, that said Felland, Edwardson & Son, or either of them, shall pay or cause to be paid to us the amount of money that shall at that time be due us by the said Felland, Edwardson & Son on notes and accounts, together with the purchase price of the above-described land,*125 and the sawmill located on same; purchase price amounting to $1,525.00.
«THE VOLLMER MILLING AND MERCANTILE COMPANY,
«By OSCAR LARSON,
«Sect. & Treas.”
This paper would seem to be a direct negation of the whole theory of the plaintiff, that a conspiracy was entered into between the Vollmer Milling and Mercantile Company and Ed-wardson to defraud him. The plaintiff has the same option of purchase, and upon the same terms, under this instrument, that his partners, or either of them, have. It was given with full knowledge of its contents by all the members of said firm, and would appear to have been acquiesced in by them all. It was given after the title to both the real and personal property mortgaged had vested in the Vollmer Milling and Mercantile Company. Such action by the Vollmer Milling and Mercantile Company at this time seems hardly consistent with the theory that they were seeking to “cheat, wrong and defraud the plaintiff for the benefit of Edwardson,” It appears, moreover, that, at the sale under the chattel mortgage, Edwardson had procured the attendance of a friend, John Oleson, who, it is shown, was a man of almost unlimited means, and who, as he states himself, attended said sale to look after and protect the interests of his friend Edwardson; yet said Oleson declined to bid more than $725 for property which it is claimed by the plaintiff was worth at the time $6,000. On the seventh day of July, 1894, the plaintiff sold and transferred to his copartners, Ole Edwardson and Ole O. Edwardson, all his interest in said firm, and in the property of said firm, except one-half interest in such of the notes and accounts theretofore assigned by said firm to the Vollmer Milling and Mercantile Company as should remain in the hands of said Vollmer Milling and Mercantile Company after the indebtedness of said firm to them had been paid, which sale and transfer were evidenced by an agreement, in writing, duly executed by all of the members of said firm, and which declared said copartnership dissolved. The position of
Plaintiff contends that the deed executed by himself and his copartners to the Vollmer Milling and Mercantile Company on the 8th of March, 1894, is, by reason of the agreement of the same date executed by the Vollmer Milling and Mercantile Company to them, a mortgage. "We cannot agree with this contention. The agreement was for the conveyance, not only of the real estate deeded, but of the personal property purchased by the Voll-mer Milling and Mercantile Company at the sale under the chattel mortgage, upon the payment by the said firm, or either of them, within eight months, of the amount at that time due from the firm to said Vollmer Milling and Mercantile Company. It is not claimed or pretended that any payment or tender of