14 Colo. App. 157 | Colo. Ct. App. | 1899
Plaintiff Hawes was the owner of a ranch in Saguache county near the city of Gunnison, upon which he resided. In the latter part of November, 1896, he executed to Mrs. Sills, wife of defendant, a promissory note for a certain sum of money, payable twelve months after date ; and, to secure its payment, gave' to her at the same time a chattel mortgage upon certain horses and other personal property on his ranch. Soon after, he had a conversation with defendant, who, in this as in all other business affairs, acted as agent for his wife, and told him that he thought of going to Cripple Creek in order to secure employment during the winter, and that in such case he would leave some person in charge of his ranch and property. Defendant advised him to go. This is the testimony of the plaintiff and is undisputed. About the first of January following, he did go to Cripple Creek, having first employed a neighbor to look after his stock and other property upon the .ranch. About a week after his departure, the defendant went to the ranch and took and
“ If at any time hereafter before said indebtedness shall be fully paid, said party of the second part, her assigns or legal representatives, shall feel insecure or unsafe in this security, then and in any such case, said party of the second part,' her heirs or legal representatives, or the agent of them or either of them, may take immediate and full possession of the aforesaid property, goods and chattels, and anj’- and every part thereof, * * * and proceed to sell the same,” etc.
In answer to the second count in the complaint, with reference to the taking possession of the ranch by the mortgagee, it was alleged that plaintiff had abandoned the ranch, and notified the mortgagee of the same, and agreed with her that she might go upon the ranch and harvest and dispose of the hay thereon and credit the same upon the note of plaintiff. Trial was to a jury and verdict and judgment were in favor of plaintiff.
The chief argument and contention of defendant is based upon this insecurity clause in the mortgage. The court among other instructions gave the following:
“ If the jury- shall find and believe from the evidence that the defendant, acting as the agent of the holder of the mortgage, really and in good faith believed that this security was*160 becoming unsafe, and bad a right so to believe from the facts which he knew personally, or which had been communicated to him, then he had a right to take any property which was covered by the mortgage and dispose of it, and that he might do lawfully even though said security was not in fact becoming unsafe.”
The defendant insists that this instruction was error. He claims that this provision in the mortgage is for the benefit of the mortgagee, and that upon his taking possession under it, before default, no proof is required to show that he considered himself unsafe, the legal presumption being that such was the fact; that the mortgagee is the sole judge of the happening of the contingency upon which he may take possession; that such a clause vests in the mortgagee an absolute discretion to take possession of the property whenever he may deem himself insecure, and the exercise of this right does not depend upon the fact that he has reasonable ground for deeming himself insecure. We cannot indorse such a harsh and arbitrary doctrine. It is true that there is some authority in support of this rule, but the great weight of modern authority, as well as reason and justice, it appears to us, are against it. The true rule, it seems to us, should be, and is, that the mortgagee has the right to determine for himself whether he is unsafe in his security, subject, however, to the limitation upon this right that his judgment must be exercised in good faith and upon reasonable grounds or probable cause. We do not go to the extent of saying that he must prove there was actual danger, but we think he should be required to show that there was apparent danger, or that he had good reason to believe there was such grounds for such belief that a reasonable man might in good faith act upon. The object of a chattel mortgage is usually to give the mortgagor the possession, use and enjoyment of the property during the time the indebtedness runs, as well as to secure the payment of the indebtedness. The rule contended for by defendant would give the mortgagee the power to absolutely defeat the whole object and purpose of the
We think that the instruction of the court was correct, and was fully as favorable to the defendant as the law would permit. Possibly the phraseology might be subject to some technical objection, but the ideas conveyed by the language express the true rule, and we do not see how it was possible for the jury to have been misled in any manner. The chief authority relied upon by defendant in support of his contention is from New York, — Smith v. Post, 1 Hun, 517. This decision was rendered in 1874. In 1892, the supreme court of New York, in another case involving this same question, said:
“ The authorities seem to be to the effect that when a mortgagee assumes to take possession of the mortgaged property under the safety clause before default, he must show some ground for claiming that he deems himself insecure.” Hawover v. Bell, 19 N. Y. Supp. 612.
The defendant filed a motion for a new trial, among other grounds for asking which, alleging that the damages were excessive. In hearing this motion, the court seems to have considered this objection well taken, and suggested that upon condition the' plaintiff remitted the sum of $105, from the verdict of the jury, the motion would be overruled, otherwise, it would be sustained. The plaintiff in open court
The defendant also assigns error upon the ground that the court improperly struck out certain testimony of the defendant as to his reasons for deeming the security unsafe, and
“ Q. You may state what reason you had for taking possession.
“ A. From what Mr. Murphy told me when he came down here.
“ Q. State if you had any other reason.
“A. Mr. Hawes had left there, was going to leave the country and leave the stuff.”
Plaintiff objects unless the witness knows this of his own knowledge.
“ A. Only by being told is all the way I know.”
Plaintiff moved to strike out the answer last given, and the motion was sustained by the court. It is of this defendant complains. If there was error in this, it was without prejudice, because subsequently the witness testified, without objection, to the facts that were attempted to be reached by this question and answer, namely, that the property was on the ranch and apparently not'being cared for; no appearance of any person being around; the horses shut up, etc, — all facts tending to show that the defendant had left the country and abandoned the property. There was also other evidence admitted without objection, tending to show what the defendant had been informed in reference to the plaintiff leaving.
Defendant also complains because the plaintiff was allowed to testify as to the value of the property taken, without having first qualified himself to testify as a witness in reference to the market value of the various articles. It may be well questioned whether the rigid rule contended for by defendant prevails in suits of this character where the property involved is household goods and other chattels which the party testifying has himself purchased, owns and has used. Such evidence would appear to come clearly within the rule as to competency laid down by this court. Railway Co. v. Williams, 8 Colo. App. 527.
However this may be, the answer of defendant obviates
The above embrace all of the alleged errors upon which defendant chiefly relied in his argument for reversal, and are all that we deem it necessary to consider or discuss. Not being able to discover any material error, the judgment will be affirmed.
Affirmed.