14 Colo. App. 442 | Colo. Ct. App. | 1900
As it may be characterized with sufficient accuracy for the purposes of a statement, this is a bill in equity to redeem from a chattel mortgage after maturity. But two of the points which are relied on by the appellants need be considered since the resolution of these adversely to their contention will compel the affirmance of the judgment.
On the 25th of May, 1897, Davies was the owner of a sawmill located on the Snake river in Summit county, and carrying on the general business of a sawmill. Leapold & Jones were lumber dealers in Denver, and on that date made a written contract with Davies for the purchase of some 50,000 feet of merchantable lumber of the kinds and dimensions that might be ordered. According to its terms Davies was to deliver three carloads of lumber on the dates named, at a fixed price per thousand feet. Davies apparently being short of cash entered into an arrangement with them whereby they were to advance him, in supplies needed in and about the mill, $250. By various transfers the title to the sawmill became vested in McCartney, the appellee, and the rights of the contract in the appellants, Leapold & Barr. The circumstances or nature of the transfer and the extent of the interest of these assignees can be well omitted since there is no contention concerning them. To secure themselves for the advances which they agreed to make it was provided that they should be taken as payment for the lumber which was to be delivered and they took a note from Davies for $250 which recited that sixty days after date Davies promised to pay to their order $250 at Denver, payable in 50,000 feet of lumber as per contract with interest at blank per cent. To further secure the payment of the note Davies executed to them a chattel mortgage on the sawmill' and its fixtures and appliances. The mortgage was in the ordinary form and transferred certain named personal property as security and the
It is quite evident from this statement, the only two propositions involved in the appeal respect the right of McCartney to file this bill to redeem from the mortgage, and respects also his right to pay the note in money instead of in lumber. It is earnestly contended by the appellants McCartney was without right to file a bill in equity to redeem from the mortgage, that his remedy was at law, and that he could bring an action in damages for its breach, or as it is suggested he might maintain replevin for the property. We do not believe either contention is well based. The law concerning chattel mortgages- has been settled by a long series of adjudications, and
This brings us to the other question, which as we look at it, is not only largely settled by the authorities, but is determined by the agreement of parties. We might possibly put the decision expressly on the basis of the agreement, without deciding the precise proposition as to the general rule which gives the maker of a note of this description Avhich is payable in property, the right to discharge it in money. We-
Regardless of this principle we gather from the terms of the instrument the note and mortgage were in no sense given
We also likewise conclude the judgment was right for another reason. There were neither plea nor proof offered by the appellants to the point that they suffered damages by reason of the breach of the contract arising from the failure of Davies or McCartney to manufacture and deliver the lumber. It was not averred that they had otherwise sustained damages, nor that lumber had risen in price, nor that Leapold and Barr had been damaged because of the failure in that they had been unable to complete contracts into which they had entered, or in any wise to show that the breach had occasioned any damage, other than the loss of the consideration which they had paid in the way of supplies to secure the return of which, the note and the mortgage were undoubtedly-given. Under the circumstances, it is quite evident the only loss which came to the appellants was the value of the supplies which they furnished, which was liquidated and fixed as of the value of $250 and these damages would be fully and completely satisfied by the payment of the amount of the note. According to the decree, this amount was not only offered at the date of maturity but was subsequently
The judgment is right and it will accordingly be affirmed.
Affirmed.