Gay v. Moss

34 Cal. 125 | Cal. | 1867

Lead Opinion

By the Court, Sawyer, J.:

Upon the allegations of the complaint and admissions in the answer, and also upon the facts as found by the Court, we think Moss held the contract assigned and delivered to him as security for the payment of the note for three thousand one hundred dollars, as a pledge, and not as a chattel mortgage. The complaint avers that the contract was assigned and delivered “to be by him held as collateral, to secure the payment of the said note and interest as aforesaid,” and the allegation is repeated in various forms, and in one place the averment is: “ that said assignment from said White to defendant of said contract was a pledge thereof, as security for the payment of said note for three thousand one hundred dollar’s, and interest,” etc. These allegations are admitted by the answer. The assignment was absolute in form, but the thing assigned is a chose in action, and the assignment and delivery are necessary to give the pledgee the full authority to readily control it, and afford a prompt means of making the pledge available. For these reasons the fact that the title passes in form by the assignment, in case of a chose in action, does not necessarily make it a mortgage. It is a pledge upon the facts disclosed, within the principles declared in Dewey v. Bowman, 8 Cal. 151; Wilson v. Little, 2 N. Y. 443; and Campbell v. Parker, 9 Bos. 326. (See, also, Edwards on Bailment, 251.) The District Court erred in regarding the transfer of the contract as a mortgage, and, as a consequence of this fundamental mistake, other errors resulted. It may be doubted whether Moss was authorized to sell a pledge of this character at all —whether he was not bound to collect the amount due on the contract, and reimburse himself out of the proceeds. (Wheeler v. Newbould, 16 N. Y. 393.) But, however this may be, he was not authorized to sell without calling upon White to redeem, and giving him reasonable notice of the intended sale. (Stearns v. Marsh, 4 Denio, 229.) This he did not do, and his sale of the pledge in the manner found was a conversion, for which he is clearly liable. (Campbell v. Parker, 9 Bos. 326, and cases cited.)

At the time of the sale the value of the contract was found by the Court *to be eight thousand dollars. There was at the time due Moss on the three thousand one hundred dollar note, three thousand seven hundred fifty-four dollars and ten cents, as found by the Court. The amount for which Moss is liable on the conversion, is the value of the pledge eight thousand dollars, less three thousand five hundred seventy-four dollars and ten cents, the amount due him, and interest on said balance from the date of the sale, June 17th, 1863, at the rate of ten per cent per annum. (Douglass v. Krafts, 9 Cal. 562.)

We have no doubt the right of action passed to plaintiff by the assignment from White, and that plaintiff is entitled to recover in this action.

All the necessary facts appear from the admissions of the pleadings and findings of the Court. The finding that the assignment and delivery of the contract was a mortgage, and not a pledge, although stated as a finding of fact, is, in view of the other facts found, and, also, of the facts admitted in the pleadings, the statement of a conclusion of law. There is, therefore, as the District Court suggests in its opinion denying a new trial, no reason why this Court should not direct the proper judgment to be entered in the case.

The judgment is reversed, and the District Court directed to enter judgment against defendant, Moss, for the balance, after deducting the amount found due said Moss, viz : three thousand seven hundred fifty-four dollars and ten cents, from the value of the pledge, viz : eight thousand dollars, and interest thereon from June 17th, 1863, the date of the sale, at ten per cent per annum.

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Rehearing

By the Court, Saavybr, J., on petition for rehearing :

Bespondent’s counsel, in his petition for rehearing, bases his whole argument upon the hypothesis, that the further findings, made by the Court in response to plaintiff’s exceptions for defects in the original findings, were filed without authority of law, and that they are, therefore, nullities, and constitute no part of the record. He claims that the findings upon which the decision turned are improperly in the record; firstly, because no written finding was demanded by the plaintiff; and secondly, because the exceptions for defects were not filed in time, and, being filed too late, the original findings were conclusive, and the Court had no authority to supply the defects in response to the exceptions. The Court was undoubtedly authorized to file written findings in the first instance, whether demanded or not, and it did, in fact, file them. But suppose it were otherwise ; neither of these objections find any support in the record, and for this reason they were not noticed in the opinion, although urged in respondent’s brief on the former hearing. These groundless objections are now made the basis of the entire argument in the petition for rehearing. The record states expressly that “said plaintiff, having duly requested a finding in writing therein,” the Court subsequently, “ on the 29th of December, 1866,” rendered and duly filed the following findings of fact and conclusions of law. “ Plaintiffs thereupon, to wit, on the-day of January, 1867, and in due time, duly filed and served notice of the following exceptions for defective findings.” The date of filing does not appear here, but it is said to be “ in due time.” In another part of the record the service of notice of exceptions, and of filing, appears to have been on the 14th of January, 1867, which was sixteen days after the filing of the finding on the 29th of December.

But under section one "hundred eighty the plaintiff was entitled to file and serve his exceptions within five days after receiving from, or giving to, the adverse party written notice of the findings.” It nowhere appears when written notice of the findings was given or received, or whether it was ever given. Uotice may well have been given within five days of the 14th of January. If so, the filing and serving of the exceptions were “ in due time,” and the record says they were “ in due time.” This is conclusive, and the subsequent findings in response to plaintiff’s exceptions affirmatively appear to be in all respects regular.

We have nothing to do with the evidence on this appeal, and the facts as found by the Court, and not as alleged by the answer, must be taken as the real facts of the case. On these facts it appears, not as respondent assumes, that defendant Moss assigned his three thousand one hundred dollar note, delivered the pledge with it as an incident to, and security for, the note, but, on the contrary, that “ defendant Moss sold and assigned said contract (Exhibit A—the pledge) to William 8. Eitck for the sum of six thousand dollars,” etc., and “ that the consideration of said sale and assignment to said Fitch received by said Moss was [not the amount due on the three thousand one hundred dollar note, but] six thousand dollars, to wit: two thousand dollars in cattle and four thousand dollars in notes bearing interest and secured by a mortgage.” The Court also finds, that, at this time, there was only “ due from said White to said Moss on said three thousand one hundred dollar note the principal thereof, three thousand one hundred dollars, and six hundred fifty-four dollars and ten cents interest—making an aggregate of three thousand seven hundred fifty-four dollars and ten cents.” Whereas Moss sold the pledge itself (not the note and his interest in the pledge) for six thousand dollars. If he only sold the note, it must have been considerably above par, which is not usual in the case of notes of private parties. It nowhere appears that the three thousand one hundred dollar note was ever assigned to Fitch. The contrary is the plain and necessary inference from the other facts found. The Court also finds that Buttrick and Moss had been paid off all their demands for completing the contract, and that nothing was due from White, except the said sum due on said three thousand one hundred dollar note; that Buttrick held the pledge for Moss, and Moss, although he ostensibly sold in the name, and as the attorney of Buttrick, was in reality acting for himself. This sale of the pledge was clearly a conversion, as we held on the former hearing. Whatever the facts may be, the Court also found the value of the contract (the pledge) at the time of the sale and conversion to be eight thousand dollars—and that the balance, after deducting the three thousand seven hundred fifty-four dollars and ten cents due on the three thousand one hundred dollar note, belonged to White. The respondent did not complain of these findings, or move for a new trial on the ground that they were unsupported by the evidence, or otherwise. They are, therefore, facts in the case which cannot now be questioned by him.

The respondent, in his petition for rehearing, has also labored to show, that the common law mortgage of personal property, like mortgages of realty, has lost its ancient character, and become assimilated in all its legal incidents to a pledge. We do not perceive for what end; for, if this be conceded, it is so much the worse for him. If a mortgage, as claimed by him, is in modern law to be treated in all respects as a pledge, then the District Court was certainly wrong, for it held the transaction to be a common law mortgage, strictly governed by the principles of common law, and it is only upon this theory that there could be any possibility of upholding the judgment of the Court below.

Rehearing denied.

Mr. Justice Rhodes expressed 210 opinion.