This is an action brought by the owner of a chattel mortgage upon a crop of wheat against an elevator company, for the value of such wheat. The action was tried to a jury, and, at the close of the case, the defendant, by its counsel, requested the trial court to direct the jury to find for the defendant. This request was refused, and, at the request of plaintiff’s counsel, the trial court directed a verdict for plaintiff. These rulings are assigned as error in this court. Both sides, having requested a directed verdict, are in the attitude of consenting to the withdrawal of all questions of fact from the jury, and are also in the attitude of claiming that there are no disputed questions of fact in the case. In such cases, where, as in this case, there is no conflict in the evidence, the questiоn is whether the court erred in its conclusion of law in directing a verdict. In other words, did the court, in directing a verdict, put a proper legal construction upon undisputed facts?
For the purpose of this decision, we shall concede certain facts to be established by the evidence, which defendant’s counsel insists are not established. We shall assume that the undisputed evidence shows that plaintiff’s chattel mortgage was duly filed, and covered certain wheat, which was raised and owned by the mortgagor; that, after such wheat was threshed, the mortgagor sold and delivered the same to the defendant; and that the debt is still unpaid. We further assume that the defendant converted the wheat to his own use, and refused, on proper demand therefor, either to pay the debt secured by thе mortgage, or to deliver the wheat to plaintiff. Nevertheless, it is our opinion, and we shall so rule, that the plaintiff has, through its authorized agent, debarred itself from asserting or claiming a lien on the wheat. The evidence shows clearly that the agent knew of and authorized the sale of wheat to the defendant. The attorney for the plaintiff, who represented plaintiff in procuring the note аnd mortgage, and has at all times since their execution and delivery to him had the same in his hands, testified in plaintiffs behalf as follows: “I have had the note in my possession from the time of
The evidence we have quoted is not disputed, and to our minds it is significant that the agent Young, who tried the case for the plaintiff, and who testified as a witness in plaintiff’s behalf upon other features of the case, does not attempt to deny the evidence we are here discussing. In his brief in this court, appellant’s counsel says: “There is absolutely no evidence that respondent’s agent, Young, even if he had the power, which is not shown, authorized the sale оf the grain, or authorized the mortgagor to receive the price therefor. A suggestion by a collection agent to haul gi-ain (and deliver storage tickets) cannot be warped into an аuthority to sell and convert the proceeds.” The trouble with this proposition of counsel is that the statements of fact contained therein are not only without support in the record, but they аre clearly refuted by the record. As has been seen from the testimony, — and the fact otherwise clearly appears from the record, — the agent of plaintiff had plenary authority from his рrincipal. He was authorized to pursue his own course, and adopt any lawful means to collect the claim which the plaintiff might adopt. He therefore might, if his judgment dictated that policy, direct the debtor to sell the mortgaged property, and with the proceeds discharge the debt. This, we think, is what the agent did do in effect. There is not a suggestion in the evidence
The record is silent as to whether, before the sale of the grain was made, the defendant was informed that the plaintiff had consented to such sale. But this is immаterial. If, as a matter of fact, the sale had been consented to in advance, such consent could-be pleaded as a defense to any action predicated upon thе lien of the mortgage. The lien had been waived by the mortgagor’s consent, followed by the sale pursuant to the consent. It follows that the trial court erred in directing a verdict for the plaintiff.
For such error, the verdict and judgment are vacated, and a new trial ordered.