92 Mo. 293 | Mo. | 1887
This is an action in the nature of trover and conversion to recover damages for the alleged taking and conversion by defendant of certain personal property, consisting of hogs and cattle. The defendant in his answer admits the taking of the property, and justifies his action in -virtue of a chattel mortgage on said property, executed by plaintiff to him, to secure the payment of a debt therein mentioned, which mortgage contained the following provision:
“If the said George W. Holloway shall sell or attempt to sell * * * said property at any time before said indebtedness is fully paid and discharged, whether the same be due or not, then it shall be lawful for the said J. H. Arnold, or any one in his name, to take possession of said property wherever it may be found, and sell the same in any manner that he shall think fit.”
Plaintiff in his reply avers that after the execution and delivery of the chattel mortgage it was agreed that the conditions of the mortgage should be waived so far as to allow plaintiff to sell all or any portion of the hogs and cattle mentioned therein, and apply the proceeds on the debt secured by it; that after this agreement with plaintiff defendant sold part of the hogs for one hundred dollars, which, in pursuance of said agreement, he tendered to defendant and which he (defendant) refused to receive, in violation of said agreement.
On trial by the court, a jury being waived, judgment was rendered for defendant, from which plaintiff has appealed, and assigns for error the action of the court im giving and refusing to give instructions. The refused instruction is as follows :
“1. If you believe from the evidence that the defendant, Jas. H. Arnold, procured a constable or other officer of the law to go in and upon the lands of plaintiff, without writ or legal process issuing from any judge or court whatever directing thereto, and take therefrom and from the possession of plaintiff’s agent, the cattle and property mentioned in the petition in this case, or any part thereof, and remove the same to some other place and sell it, then the chattel mortgage mentioned in defendant’s answer and introduced in evidence in this case is no defence to this action, and you must find for the plaintiff in a sum equal to the value of the property so taken, as shown by the evidence at the time the same was taken by defendant.”
The following are the instructions given :
“1. Although the mortgage may have been de
££2. If the court finds that defendant did consent verbally that plaintiff might sell the hogs and apply the proceeds in payment of the note, and plaintiff sold them for that purpose and intended to apply the proceeds in payment of the note, then such consent justified the plaintiff in making the sale, and defendant has no right to take the property, and the finding should be for plaintiff. If the consent given by defendant was only that plaintiff might sell the hogs and apply the proceeds in payment of the note, and the plaintiff sold them, not for that purpose, but for the purpose and with the intent to apply the money arising from the sale to his own use or in the purchase of other property, then such sale was a breach of the mortgage and verbal consent, and defendant had a right to take the property and sell the same.”
£ £ 3. If defendant consented that plaintiff might sell the hogs and use the proceeds, then the finding must be for plaintiff.”
In order to pass on the action of the court in giving and refusing instructions, reference to the evidence is proper. The evidence was conflicting as to whether, after the execution and delivery of the mortgage and its deposit with the recorder, it was modified by an agreement between plaintiff and defendant, that plaintiff
In support of the instruction we have been cited to section 705, Jones on Chattel Mortgages, where, after saying that upon default the mortgagee may take peaceable possession, and that the law will not allow him to commit or threaten a breach of the peace and then justify his conduct by a trial of the right of property, it is added that: “ The mortgagee becomes a trespasser by going on the premises of the mortgageor, accompanied by a deputy sheriff having no legal process, and taking possession without the active resistance of the mortgageor. To obtain possession under such a show and pretense of authority is to trifle with the obedience of citizens to the law and its officers.” The only case referred to as the basis for the text, as above embraced in quotation marks, is that of Thornton v. Cochran, 51
The theory adopted by the court in trying the case, as evidenced by the instructions given of its own motion, was, that if the mortgage, after its execution and delivery, was modified by agreement to the effect that plaintiff might sell the property and apply the proceeds on the debt it was given to secure, and that if he sold pursuant to this agreement, defendant had no right to take possession of the property in question, but that if he sold the property without any agreement or modification. of the-mortgage, then, by its express terms, defendant had the right to take possession of the property, sell it and apply the proceeds to his debt. This theory -was the correct one. Coty v. Barnes, 20 Vt. 78; McNeal v. Emerson, 15 Gray, 384; Huggans v. Fryer, 1 Lans. [N. Y.] 276; Saxton v. Williams, 15 Wis. 292-8.
There is nothing in the objection made that the instructions are erroneous, in that they ignore the fact that plaintiff tendered defendant the amount received for the hogs he sold, which defendant refused to accept.. The instructions as given were more favorable in this respect to plaintiff than the case made in the pleadings, for, under the replication, the only modification of the-'mortgage claimed to have been made was that plaintiff should have the right to sell the property and apply the proceeds on the debt, whereas under the instructions a finding was authorized for plaintiff if it only appeared that under such modification he sold the property for-
Judgment affirmed,