121 P. 567 | Idaho | 1912
This'is an action in claim and delivery, whereby the plaintiff seeks to recover from the defendant the possession of one hundred tons of hay. The following facts appear from the record:
In the early summer of 1908, one E. C. Norton and his wife gave two chattel mortgages on a growing crop of hay to secure the payment of their two certain promissory notes for the aggregate principal sum of $502.50, which notes became due on December 15, 1908. Said mortgages were duly recorded, the first, on June 15, 1908, and the second, on September 25, 1908. During the summer of the same year, through oral conversations and letters, the mortgagor, Norton, claims that he received from the mortgagee authority to sell the mortgaged hay, and if he did sell it, he was to deposit the proceeds in a bank at Caldwell to the credit of the mortgagee. On December 24, 1908, a few days after the maturity of said notes and mortgages, the plaintiff, who is respondent, negotiated with the mortgagor Norton for the purchase of the hay covered by said mortgages. It appears that said hay was a part of one large stack containing 131 tons, situated on the premises occupied by said Norton under a cropping lease; that $100 was paid down at that time on the purchase price, and thereafter a dispute arose in regard to which of the contract
The cause was tried by the court without a jury and the court found, among other things, that prior to the 24th of December, 1908, said mortgagee had given to said Norton both parol and written authority to sell and dispose of the hay described by said chattel mortgages; that on said day he entered into a valid agreement with the plaintiff whereby one hundred tons of the hay described in said chattel mortgages were sold to the respondent Saxton; that on said date said Saxton paid said Norton $100 on the purchase price of said hay and agreed to pay the balance on the delivery of the hay; that at the time of the commencement of this action the sheriff was in the possession of the baled hay described in the complaint, under the direction of the mortgagee, or his attorney, and at that time the plaintiff was entitled to the possession of the
This appeal is from the judgment.
This being an action in claim and delivery, in order to recover the plaintiff must show that he is the owner or entitled to the possession of the property, and that the property is wrongfully detained by defendant. (See. 4272, Rev. Codes.) There no doubt was some conversation between the mortgagee and the mortgagor in regard to the mortgagor’s selling the hay and applying the proceeds on the mortgage indebtedness. These conversations were had some time before December 15, 1908, the date when said mortgages became due. The first contract above referred to for the sale of said hay was entered into nine days thereafter, or on the 24th of December. It was not an ■ executed contract, but an executory one. It seems that the minds of the parties did not meet as to all of the provisions of that contract, and no hay was delivered to the respondent. Under the original contract the hay was to have been delivered aboard the ears at Caldwell, the respondent retaining the right to reject any and all of said hay that he did not consider first class, and was not to pay for the same until he had accepted it. Under said' foreclosure proceedings, brought on March 17th, the sheriff took possession of said hay before it had been delivered under said contract to the plaintiff, and before he became the owner thereof. While the sheriff was so in possession of said hay, Norton executed said contract dated April 9, 1909, whereby he agreed to take $5.25 net for said hay and to deliver the same aboard the cars at Nampa for two dollars per ton for hauling and putting the same on the cars. After that written contract or bill of sale was entered into, this suit was brought.
In Knollin v. Jones, 7 Ida. 466, 63 Pac. 638, this court held that a sale by consent of the mortgagee waived the lien of the mortgage to the extent of the sale so made. In that ease the property had been actually delivered to the purchaser. Counsel for respondent cite, among other eases, Patridge v. Minn. & D. E. Co., 75 Minn. 496, 78 N. W. 85, in support of the contention that authority to sell by the mortgagee releases the mortgage. The only point decided there was that a sale made with the consent of the mortgagee waived the lien where the sale had been consummated and the property actually delivered. They also cite New England Mortgage M. S. Co. v. Great W. E. Co., 6 N. D. 407, 71 N. W. 130. In that ease the delivery of the property sold had been actually made in compliance with the contract of sale. The same conditions existed in Fairweather v. Nelson, 76 Minn. 510, 79 N. W. 506. In Peterson v. St. Anthony & D. E. Co., 9 N. D. 55, 81 Am. St. 528, 81 N. W. 59, the court said:
*339 “The crucial question is whether the plaintiff, holding a chattel mortgage, authorized the debtor to sell the property at private sale, and whether subsequently thereto such sale was actually made. Of course, a mere consent to a sale, not acted upon in any manner, would not operate as a waiver.” (See, also, Endreson v. Larson, 101 Minn. 417, 118 Am. St. 631, 112 N. W. 628.)
The decision in that ease indicates that that court would not go to the extent of sustaining a mere executory contract, especially where the terms of the sale were not even settled upon between the parties. Now, in the case at bar, the evidence shows that the minds of the parties did not meet upon the contract of sale of December 24, 1908, and that there was a substantial dispute between the parties to the sale as to which one of them should pay for baling the hay, which dispute continued up to the time a new contract was entered into on April 9, 1909, nearly a month after the mortgagee had revoked the authority that he had given the mortgagor to sell said hay.
Under all of the facts, it is clear that this action cannot be maintained for the possession of said hay. The judgment must therefore be reversed and the cause remanded, with instructions to the trial court to enter a judgment of dismissal in favor of the defendant. Costs are awarded to the appellant.