J. W. Edgerly & Co. v. Cover, 106 Iowa 670

J. W. Edgerly & Co. v. Cover

106 Iowa 670

Iowa

1898

Check Treatment

Ladd, J.

That J. V. Hatter was indebted to the plaintiff on the sixth day of February, 1896, as alleged, is not questioned. At thаt time he was very sick, and, because of the advice of his physician, could not be consulted. His son-in-law, John L. Miller, had been in his employment as clerk in the drug store for seven yeаrs, and for two or three years bought the goods, kept the books, made collections, paid the bills, and waited on the trade*. In addition to this, during the last six months of Hatter’s life, he conduсted the correspondence, and made ail adjustments ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with the wholesale houses. On the day mentioned, Miller signed Hatter’s name to the mortgage sued on, covering the entire stock of drugs and other goods, by himself as agent. This was done after consulting the sons of Hatter, аnd under the apprehension that the agent of the plaintiff, armed with a verified petitiоn and bond as he was, would immediately sue out a writ of attachment, and cause it to be levied on the property. The competency of Miller and his wife as witnesses, under section 4604 of the Code, is exhaustively argued by the appellant, *672but, as the appellees, ignore the point, and submit the case on the theory that they might testify, we pass that question. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Eаch party relies on the evidence of Miller, which is confirmed by that of his wife, and we set it out in extenso. Pie testified: “During the first and second weeks of his sickness, I went up to see him [Platter] almost every day, and sometimes twice a day. Sometimes, during the first part of his sickness, something came uр that I wanted to talk to him about. A claim! had come in that I couldn’t meet. I went to see him. I told him I didn’t like to trouble him, because I knew he wasn’t in a condition to be troubled about business, but if he did not feel able to talk to tell me so. He said he could talk to me a little then, and we tаlked a little about the claim. lie told me to make some collections, to sue if I thought best, to make the customers give their notes, and turn these in, or to Avork things to the best advantage, and to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍do anything I could to keep the business going. 'Come up when you can and seе me, and I will talk to you Avhen I can; but in the meantime,’ he says, 'go ahead, and do the business just as though it was your OAvn.’ He said that he knew that there were a great many debts to be paid, and things weren’t in very good condition, but to go ahead, and do the best I possibly could, and that whatevеr I did Avould be all right until he got well; and he said, 'If I don’t get well, it will be all right anyhoAV.’ ” It will be observed that the special duty of Miller Avas to “keep the business going.” To this end he was given very general powеrs. If the execution of the mortgage was included within these, it is a valid instrument. Richmond v. Greeley, 38 Iowa, 666. The authority is not exрressly given, and cannot be implied unless practically indispensable to the acсomplishment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the object of his agency. This is the rule with respect to the making of promissory notes. Whiting v. Stage Co., 20 Iowa, 557; Miller v. House, 67 Iowa, 737; Paige v. Stone, 43 Am. Dec. 420; Mechem Agency, section 389 et seq.; 1 Am. & Eng. Enc. Law, 1022, 1032. And it must be applied with strictness to the giving of chattel ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍mortgages. The evidеnce plainly indicates the purpose of Hatter to have been that the *673business continue a going concern. This appears from his suggestions with reference to raising money. But observation teaches that the execution of a chattel mortgage оn the stock of a retail merchant is ordinarily quite as effective in putting an end to his business as the levy of a writ of attachment. In Dispatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205, Chief Justice Parker remarked: “It is not carrying on the business оf the company to pledge or mortgage the machinery used by the company, and thereby suspend its operation, or place them at the will and pleasure of а mortgagee.” In Taylor v. Labeaume, 17 Mo. 338, an agent, having an entire management of a business of a lumber comрany, the members thereof living abroad, was held to have power to transfer lumber in trust in pаyment of the servants of the company. Only a part of its property was so disposed of, not enough to terminate its business. If the agent was permitted to do what the owner might have done, this must be construed with reference to carrying on his business, and not in respect to еnding it. The mortgage, if valid, transferred the right of possession to the plaintiff. The mere fact that he did not exercise this right does not argue against the existence. Miller had the authority tо sell in the ordinary course of trade, but, authority to mortgage cannot be inferred from that to sell. Jeffrey v. Hursh, 49 Mich. 31 (12 N. W. Rep. 898); Wood v. Goodridge, 52 Am. Dec. 771. As the mortgage transferred the right to the possession of the goods and fixtures in the store, and placed the operation of Hatter’s business beyond the control of Miller, its execution was inimical to the very purpose of his agency. Clearly, under such circumstances, the authority to mortgage cannot be implied. Affirmed.