| Md. | Dec 15, 1887
delivered the opinion of the Court.
In May, 1883, the appellants were the owners of a sawmill, and the appellee the owner of a tract of timber land in Alleghany County. In that month they entered into the following agreement:
“This agreement made this the 7th day of May, 1883, between Joseph Logsdon, of Alleghany County, Md., and Burkhiser and Rees, of Mineral County, W. Va., the parties of the second part, do agree to move the saw-mill on the property of the party of the first part, in Alleghany County, Md., on or before the 10th day of June, 1883; and the said party of the second part agrees to saw said Logsdon’s timber for four dollars per thousand feet; and the said party of the second part does agree to take all the sawing out in lumber—that is, such lumber as is suitable for wagon stuff, cut according to dimensions given: Said Logsdon does agree to furnish the lumber at $16.00 per thousand, delivered at the factory of Gfermond, Rees & Co., in Keyser, W. Va.”
“ The said Logsdon further agrees to keep the mill in logs as far as possible; and the party of the second part agrees to saw good lumber; and the parties of the second part do further agree that the party of the first part can have the privilege of taking the mill at fourteen hundred dollarsj and pay for it all in lumber at $16.00 per thousand, delivered at the factory of Gfermond, Rees & Co., in Keyser, W. Va.”
“ Witness our hands and seals, this the 7th day of May, 1883.”
“ Burkhiser & Rees, [Seal.] Joseph Logsdon, [Seal.]”
The appellants subsequently filed a bill to foreclose the mortgage, and the defence set up by the appellee is that by the agreement, under which he purchased the mill, he was to pay for it in lumber, and that he began his payments and continued them until the appellants refused to receive any more lumber, and so the matter rested until suit was brought.
The substantial question in the case is, therefore, whether the agreement is merged in the subsequent mortgage, or whether the mortgage was taken merely as collateral security for the performance of the agreement.
There is no doubt that the acceptance of a security of a higher nature in lieu of or in satisfaction of one of an inferior nature, operates as an extinguishment or merger of the latter; but where such security is accepted merely as an additional or collateral security for a pre-existing debt, it is equally clear that the doctrine of extinguishment or merger does not apply. Brengle vs. Bushey, 40 Md., 141" court="Md." date_filed="1874-05-01" href="https://app.midpage.ai/document/brengle-v-bushey-7893860?utm_source=webapp" opinion_id="7893860">40 Md., 141, and the cases there cited.
The question whether the mortgage in this case was taken merely as collateral security is, therefore, one of fact, and the burden of proof is upon the appellee to show that such was the case. Taking the whole evidence we think
There is a conflict between the parol proof offered hy the appellants and the appellee. They, themselves, are the only witnesses of any importance; but the written proof, as well as the parol, we think, establishes the following facts:
The appellants at the time they made the agreement of the 7th of May, 1883, were carrying on a spoke factory, and were in want of timber for the use of the factory. They first agreed with the appellee, Logsdon, to transport their mill to his land and to saw timber for him, and agreed to take all their pay for such sawing in lumber. This is the first part of the agreement. The second part of it gave Logs-den the option to purchase the mill and to pay for it all in lumber. This agreement shows that the principal object of the appellants at the time the agreement was made, was to procure lumber for their factory. The sale was made within ten days after the mill was taken upon the land of Logsdon, and the mortgage was executed in a very short time afterwards.
At the time of the execution of the mortgage, the spoke factory of the appellants was in full operation, and the same desire existed on their part to get timber for their factory that existed when they made the agreement. This is conclusively shown by the fact that the appellee made some payments in lumber, which were received and receipted for by the appellants, as a part payment on the mortgage notes, at the rate specified in the agreement. In the face of the fact that after the mortgage was given, both parties were acting under the terms of the agreement, and not under those of the mortgage, it is impossible to conclude that the agreement was merged and done away with, and the mortgage substituted in its stead. And so they continued to act until the factory was closed either by the failure of appellants, or from other causes, and then, and not till then,
We are therefore of opinion, that the mortgage in this-case was merely an additional or collateral security, and that the agreement was left in full force and effect. This agreemént the appellants, themselves violated, but whether such violation was the result of their fault or misfortune, does not appear from the record; at any rate they, and not the appellee, broke the contract.
Every fact in the record points to the conclusion that the appellee made this purchase, and gave this security, because of the sure and certain market for his sawed lumber which the agreement guaranteed him. It is no concern of the appellants whether he did or could sell his lumber elsewhere.
The agreement is silent as to the time of the payment for the mill. This omission is supplied by the mortgage which fixed the times of payment at six and eighteen months.
The appellee had the right then, and has the same right now, to pay for it in lumber at the times specified in the mortgage. Had the appellants not broken their contract, and had the appellee failed to pay the amount of $700 in lumber at the expiration of six months from the date of the mortgage, the appellants would have been entitled to resort to the security of their mortgage. But by preventing the appellee from fulfilling his contract and disposing of his lumber to them at the time he anticipated doing so, the appellants cannot prevent his doing so now. To permit that would be to allow the appellants to take advantage of their own wrong. He is, therefore, clearly entitled to the privilege of paying his debt, if he so elects, according to the agreement, in lumber.
But stress has been laid in the argument against the decree of the lower Court, because the decree gave the appellee three and nine months in which to perform his contract. This is just one-half the time allowed him by the original agreement, and the Court below could not well have given less time, if it held, as it did, and we think rightly, that the appellee was entitled to go on and perform his contract as he had originally made it.
Objection is also made to the decree because no interest has been allowed the appellants, although the mortgage notes bear interest. Viewing, as we do, the mortgage a sa mere collateral security for the payment of the debt, the interest is not material. The rights of the parties depended on the agreement. If the appellee\ia,d made default t then, perhaps, the appellants in resorting to the mortgage would have been entitled to their interest. But the appellee has made no default, and until he does no interest should be computed against him, as certainly none was contemplated by the agreement.
But even if the agreement itself had called for the payment of interest, a Court of equity would have been justifiable in offsetting such a claim, by the damages and loss which the appellee sustained by the deprivation of the market for his timber that he relied on under his agreement with the appellants, and which they wrongfully deprived him of.
In conclusion, we may say that this is a case entirely between the parties to the agreement. That no rights of creditors or any third parties are involved. That certain legal propositions and considerations that might he properly invoked, if the rights of third parties were involved, can have no application here, and the decree will he affirmed.
Decree affirmed, and cause remanded.