144 P. 1083 | Mont. | 1914
delivered the opinion of the court.
In April, 1910, James H. Kinsman purchased an automobile from L. H. Stanhope, for which he paid $1,000 in cash, and executed his note, secured by a chattel mortgage upon the machine, for the balance, amounting to $1,700. The chattel mortgage contained the usual provisions authorizing the mortgagee to take possession in ease of default in the payment of the note or the happening of any one of three or more other contingencies. In the complaint in this action the plaintiff alleges his ownership of the automobile, his right to the possession of it, and that defendant wrongfully took and converted it to his own use, to plaintiff’s damage in the sum of $2,700. The answer consists of a general denial, an affirmative defense in which defendant justifies the taking and selling of the machine under the chattel mortgage for default in the payment of the note, and finally a counterclaim for the balance due on the purchase price of the machine. By reply the plaintiff admits the execution and delivery of the note and chattel mortgage, and that no part of the note has been paid. He then alleges that, on the same day the
1. It is insisted that, since the plaintiff’s action for damages for conversion sounded in tort, a counterclaim for the balance of the purchase price founded in contract and which, it is further contended, does not arise out of the transaction set forth in the complaint, and is not connected with the subject of plaintiff’s action, is not such a counterclaim as is permitted by section
2. Plaintiff contended in the trial court, and contends here, that the subsequent agreement entered into on the same day the note and mortgage were executed and delivered worked a novation of the original obligation represented by the note and mortgage, and that such new agreement may be shown, even though it rests in parol and has not been fully executed. The question still
In McDonnell v. Alabama Gold Life Ins. Co., 85 Ala. 401, 5 South. 120, it is said: “A ‘novation,’ under the.rules of the civil
Our conclusion is that novation was not effected by the transaction pleaded, but that the new agreement merely tended to modify the prior written contract represented by the note and mortgage in respect to the time and manner of payment and the character of security; and since such subsequent agreement
3. There is some contention that a mortgagee cannot execute the power of sale conferred by a chattel mortgage, but must call
The judgment and order are affirmed.
Affirmed.