71 P. 137 | Or. | 1903
Lead Opinion
after stating the facts, delivered the opinion of the court.
The legal issues presented are few, although the record is voluminous, and incumbered with a vast variety of exhibits, more or less confusing, and difficult to reconcile so as to arrive at an entirely satisfactory solution of the controversy.
“Whereas, the said corporation has been organized for the purpose, among others, of building and operating a line of railroad from a point on Coos Bay, at' the Town of Marshfield, in the State of Oregon, running thence to a point at the City of Roseburg in said state; and
‘ ‘ Whereas, the said corporation is at present wholly without means of constructing such railway line; and
“Whereas, certain subscriptions, subsidies, and guaranties have been made by individuals and corporations in favor of the party of the first part, on condition that said railway line be completed and in operation within a limited time, which subsidies amount in the aggregate to about $225,000; and
“ Whereas, the said corporation also has powers under its charter and the laws of the state to issue its bonds to the amount of $25,000 per mile of said proposed road, to be secured by a mortgage upon all its property now owned or to be acquired; and
“ Whereas, said R. A. Graham, party of the second part, proposes to undertake the construction of said road from*411 Marshfield to Roseburg, in consideration of receiving from said party of the first part an assignment of all said subsidies, subscriptions, and guaranties (except rights of way and terminal facilities), and also the bonds of the same so secured as aforesaid to the amount of $25,000 per mile of said road, as the 'same shall be located and constructed between said points: * *
“Now, Therefor®, This Memorandum "Witnesseth, that, in consideration of the agreement of the said party of the second part to undertake the construction of said line of railroad between the points hereinbefore named, said railroad to be a standard gauge, and be built in a substantial and proper manner so as to be successfully operated when built, and to have said railroad in operation within the time limited by said subscriptions and subsidies, or within such further time as shall hereafter, by resolution of said board of directors, be determined upon, the party of the first part hereby agrees: First, to cause to be assigned to said R. A. Graham or his assigns all subscriptions, subsidies, and guaranties made to said party of the first part, as an inducement for the building of said road; and, second, to cause to be issued and delivered to said Graham or his assigns the first mortgage, thirty years, 6 per cent gold bonds of the party of the first part to the amount of $25,000 per mile of said proposed road between Marshfield and Roseburg, as the same shall be located and constructed, and to secure said bonds by a mortgage or trust deed upon said line of railway, and all property of said corporation now held or hereafter acquired in manner and form satisfactory to said Graham or his assigns. ’ ’
The board, at a meeting held April 28, 1891, adopted a form of bond and mortgage which had theretofore been submitted to and approved by the Farmers’ Loan & Trust Co., and the president and secretary were authorised and empowered to sign and execute them in behalf of the company. At this meeting, F. W. Burnett resigned as director, vice president, and general solicitor, and J. "W. Bennett was elected director and vice president in his stead. Bennett qualified as director May 1, 1891. He was again elected director September 12, 1891, and qualified on the 14th, at which date he was re-elected vice president. It is also shown that Bennett acted as general solicitor or counsel for the company from the time of his first election as director and for several years thereafter. On June 1, 1891, it
On October 15, 1890, Spreckels Bros. & Co. advised Graham that it had purchased on his account thirty miles of 45-pound steel T-rails, and necessary fish plates, bolts, etc., — payments to be made, $50,000 cash on receipt of property in San Francisco, and the balance in ninety days after final delivery, with interest at 7 per cent. Graham confirmed this purchase, but when the rails arrived in San Francisco he was unable to pay for them, and all but ten miles were sold, with his consent. Spreckels Bros. & Co., however, would not let him have the balance until he gave security for payment. This was accomplished about August 24, 1891, by an arrangement whereby Graham executed his two notes, with Collins of the First National Bank of San Diego as surety, payable, one in four and the other in six months, and agreed to give Spreckels Bros. & Co. the bonds, and a majority of the stock of the railroad company, and the subsidies, as security additional to Collins’ indorsement. This arrangement was confirmed by subsequent correspondence of the parties. On February 24th, Spreckels Bros. & Co. wrote to Graham, advising him that his second note of $17,000 was then due, and requesting him to forward securities at once, otherwise it must insist upon payment, and, on the 27th, Graham answered, saying, “I beg to_state that the delay in not delivering you the securities which were promised must have been very aggravating,” and explaining that it was caused by the bank note company’s not having, them'ready. He further wrote that the first section of five miles had been accepted by the company, and the bonds ordered by the trustees, and that the board would have another meeting “early
All the bonds issued, being 625 in number, went'into the hands of Spreckels Bros. & Go. under these arrangements save five, and 10,001 shares of the capital stock and certain subsidies. Outside of these securities, Graham had no credit whatever with Spreckels Bros. & Go., and it dealt with him in reliance wholly on the securities. In its dealings with Graham, and the advancement of funds to him, Spreckels Bros. & Co. kept its account with him individually, and not as manager of the railroad, or with the railroad itself. Mr. Samuels, who was the manager of Spreckels Bros. & Co., testified, however, that it Avas his understanding that the advances Avere made for
Now, as to the acquirement of the property, which it is insisted is covered by the second mortgage of Flanagan & Bennett Bank, or the one executed September 14, 1891: Locomotive No. 1 was purchased July 15, 1891, by Graham of the New York Equipment Co., under an agreement conditioned that the title should remain in the equipment company until payments were made in accordance with the stipulations therefor, being a cash payment of $1 000, and $500 at the end of each month thereafter for four months, making the last to fall
There is another feature of the case that militates somewhat against the plaintiff, which is, that in 1896 Mr. Bennett took the mortgage off the files, supposing that Graham was solvent and amply able to pay, and that he would pay the obligations which the mortgage was given to secure in due time, and thereafter the notes were renewed; so that the conduct of the parties was not altogether consistent with a continuous claim of lien under the chattel mortgage. It is argued that Flanagan & Bennett having secured their mortgage from Graham prior to his transfer of the property to the railroad coxnpany, the company could xnortgage only what interest it had, and, necessarily, the trust company’s mortgage would be subox'dinated to theirs. This would be so, ordinarily, but the rule can have no application here, as Bennett, being a member of the firm of Flanagan & Bennett, was largely instrumental in securing the execution of the xxxortgage by the railroad company to
The decree of this court will therefore be that plaintiff have a foreclosure of its mortgage of September 14, 1891, without a personal decree against the railroad company, but that it be subordinate and subject to the mortgage or trust deed of the defendant the Farmers’ Loan & Trust Co. The decree of the court below will therefore be modified accordingly.
Modified.
Rehearing
On Petition for Rehearing.
delivered the opinion.
In the petition for a rehearing of this cause counsel for plaintiff and appellant controverts the statement contained in the opinion rendered, to the effect that at the argument of the cause a foreclosure of plaintiff’s first mortgage was not seriously insisted upon. We may have been erronously impressed by what was said, or possibly by what was left unsaid. But, however that may be, the finding of the court is altogether tenable within the record, and is decisive of the particular issue, namely, that there was not sufficient identification of the property to enable the court to lay hold of it by apt designation and description, and to decree a foreclosure and its consequent sale. We adverted to the testimony of Mr. Bennett, one of the proprietors of the plaintiff bank, on this subject, and there is no need of further reference to it now. And in that connection we observed that Chandler “testified that none of this property has come into his possession.” We
The insistence by the petition for a rehearing that plaintiff was entitled to a personal decree against Graham for the amount of its demands is answered by the fact that such was the actual decree of the court, and it was so entered of record at the time. The other points made are fully discussed in the main opinion. Rehearing Denied.