Sandwich Manufacturing Co. v. Robinson

83 Iowa 567 | Iowa | 1891

Lead Opinion

Robinson, J.

1. Chatty morthgage: money demands not yet earned. I. The matter . in controversy is presented in a certificate of the trial judge in words as follows: * * Is the following description contained in a chattel mortgage a sufficient description to impart notice to third parties as to the accounts therein described, to-wit: ‘One J. I. Case Threshing Machine Co.’s separator, number 10,921, with trucks, etc., and twelve-horse power, complete, with all the belts and tools owned by Menzie & Norvell. All the threshing-machine accounts which we shall earn or shall become due us by the work of the above machine from now till this debt is paid in full. All of which property I now own, clear of all incumbrance,, and the same is now in my possession in section 11-8, township number 91-2, range number 21V ”

It is claimed by the appellant that the description • is insufficient for the reason that demands for money not earned cannot be mortgaged. We do not think the claim is well founded. As a general rule, every species of personal property which may be sold, and which has an actual or prospective existence, may be mortgaged. 6 Lawson on Eights, Eemedies & Practice, sec. 3079. It is the well-settled rule in this state that a valid mortgage may be given on personal property not owned by the mortgagor, and not then in existence, if he afterwards acquire it. That rule has been applied to additions to stocks of merchandise. Scharfenburg v. Bishop, 35 Iowa, 63; Stephens v. Pence, 56 Iowa, 258. It has also been applied to crops to be planted and grown. Norris v. Hix, 74 Iowa, 525; Wheeler v. Becker, 68 Iowa, 723; Fejavary v. Broesch, 52 Iowa, 88. The right of a railroad company to mortgage its future earnings was affirmed in Jessup v. Bridge, 11 Iowa, 575, although the decision was founded to some extent on considerations of publip'’ policy. See also Dinham v. Isett, 15 Iowa, 293. The principles which govern the cases cited are applicable to the one under consideration. That an account for money due may be sold, cannot be questioned, and an interest in such an account less than the unqualified ownership of it may be transferred. Since a valid mortgage may be given on merchandise not in existence, and on crops neither grown nor planted, we must hold that one may be given on a claim for money not earned. In such cases the mortgage attaches to the property designed to be included therein when it is brought into existence. What relation a mortgage of' accounts has to the recording act is a question not presented for our consideration, and not determined.

2.-:-: sufficiency of description. II. We are of the opinion, however, that the question certified must be answered in the negative. The description given specifies the machine with which the accounts were to be earned, and the time during which they were to be earned, but there is no suggestion as to the county or state in which they were to be earned, nor of the persons against whom they may accrue, and no certainty as to the persons who shall earn them by operating the machine. The test of the sufficiency of a description in a chattel mortgage to charge third parties with notice approved by this court is stated as follows: “That description which will enable third persons aided by inquiries which the instrument itself indicates and directs, to identify the property, is sufficient." Smith v. McLean, 24 Iowa, 332. It was said in Muir v. Blake, 57 Iowa, 665, that a chattel mortgage which described the mortgaged property as “all the crops raised by me in any part of Jones county for the term of three years,77 was insufficient, and that “a chattel mortgage ought not to be a drag net, covering a. whole county, in any such general terms.77 But the description involved in that case was much more definite and certain than the one in controversy. This, contains nothing which would direct third persons to the property sought to be mortgaged. It is true, if a debtor of the mortgagor were found, he might be interrogated as to the origin of the indebtedness, and by pursuing that or some other method it, might be ascertained that the debt was owing to the, mortgagor by reason of work done with a separator bearing the number giveri in the mortgage, but the law imposes no such burden upon third persons. They are under no obligation to exhaust every possible means of information before they can safely proceed to treat the property of the mortgagor as unincumbered. Sperry v. Clarke, 76 Iowa, 506; Barrett v. Fisch, 76 Iowa, 553, and cases therein cited; Warner v. Wilson, 73 Iowa, 719.

Other questions are discussed by counsel, but are not involved in the appeal, and cannot be decided. For the reasons indicated the order of the district court is REVERSED.

---

Dissenting Opinion

Beck, C. J.

(dissenting). — In my opinion the description of the accounts covered by the mortgage is just as definite as it could possibly have been made. It describes and specifies the machine for the services of which the mortgaged accounts should accrue, and the time in which such debts should be incurred. Who the persons owing the accounts shall be, and where they live, and, therefore, where the locality of the account mortgaged shall be, could not have been known, and, therefore, could not have been stated. The opinion defeats the right of the holder of the mortgage upon a ground which could not have been provided against. The mortgage puts upon inquiry which may be readily answered as to the facts relating to the names of the persons who shall own the accounts, and the locality thereof, for the accounts are against those who "have threshing done by the machine. All accounts for such services are covered by the mortgage. In my opinion, the judgment of the district court should be affirmed.