29 Kan. 124 | Kan. | 1883
The opinion of the court was delivered by
This was an action of replevin, brought by the defendant in error, Lewis Mead, against John Sims, sheriff of Morris county, one of the plaintiffs in error, to recover two hundred and thirty-four bushels of wheat, which Sims as sheriff had levied upon, under an execution in favor of the Emporia National Bank, against George B. Wilcox and Charles H. Wilcox. Mead claimed possession of the wheat under and by virtue of a chattel mortgage executed to him on March 24, 1881, by George B. Wilcox. The mortgage purported to secure a promissory note for the sum of $360, due thirty days after date, bearing interest at twelve per cent, per annum, executed by George B. Wilcox to the order of Lewis Mead, and was filed with the register of deeds of Morris county on March 25, 1881. After the commencement of the action, the Emporia National Bank was made a party defendant. A trial was had before the court with a jury, and a verdict and judgment rendered in favor of Mead.
I. It is contended that by reason of the failure of the chattel mortgage to designate in what manner the portion of the wheat which was mortgaged was to be separated and ascertained,, and because the mortgage did not designate whether
“Now, therefore, in consideration of said indebtedness, and to secure the payment of the same as aforesaid, the party of the first part does hereby sell, assign, transfer and set over to the party of the second part, the property described in the following schedule, to wit, the undivided two-thirds of forty acres of growing wheat, being all the wheat in and growing on what is known as the Old John Wise farm, on Gilmore creek, in Morris .county, Kansas: . . . provided, however, that if said debt and interest be paid as above specified, this sale and transfer shall -be void. The property sold is to remain.in «the possession of the party of the first part until default be made in the payment of the debt and interest aforesaid, or some part thereof.”
We think within the authorities, that the description in the mortgage is sufficient, and that it was not absolutely necessary therein to designate in what manner the division of the growing wheat was to be made. (Potts v. Newall, 22 Minn. 561 ; Jones on Chattel Mort., §§142, 143; Brown v. Holmes, 13 Kas. 492; Shaffer v. Pickrell, 22 Kas. 619; Howell v. Pugh, 27 Kas. 702.)
II. It is also contended that the consideration for the mortgage had been fully satisfied, and that no indebtedness was secured thereby at the date of the levy. On the part of plaintiffs in error, one J. W. Simcock testified that on the date of the mortgage, witness went with Wilcox to Mead’s store and proposed if Mead would, as surety for Wilcox, sign an appeal bond for a certain judgment against Wilcox before a justice of the peace in an action brought by one Shepherd, that Wilcox would indemnify Mead against his liability on the bond by a chattel mortgage on the wheat; and that by agreement Mead was to hold the note and mortgage described in the petition as security only against loss or damage for his signing the appeal bond. It was further shown that on the 15th day of December, 1881, and before the commencement
III. Mead testified that about a week or ten days after the mortgage had been given, Wilcox came into his store, and he remarked to him “that his account was running up to be pretty large, and he wanted to know if it would be the understanding between them that the note and mortgage should be held for such goods as he was getting at the time,, and might get along thereafter.” That Wilcox said “Yes,” and that such was the understanding. At the time of the execution of the note and mortgage, $92.50 only was due to Mead on the store account from Wilcox. The future advances upon the subsequent parol agreement amounted to $17.48. The evidence concerning these future advances, and the instruction authorizing the jury to find therefor, were all objected to. While there is some conflict in the authorities whether the intention to secure future advances must be expressed on the face of the chattel mortgage, or not, it seems to be well settled that a chattel mortgage cannot be extended to cover advances not contemplated at the time of its execution. (Jones on Chattel Mortgages, §§ 96, 98.)
IV. After the sheriff levied upon the wheat, he harvested, stacked and threshed it, at a cost of $202.45. He also hauled it to town and stored it. It was subsequently sold by him for $200.91 — not enough to pay the expenses; and it is urged that as the expenses consumed the value of the wheat, Mead was not entitled, to anything. The court instructed the jury, that in finding the value of the wheat, the market value of it at the time of the commencement of the action was to be taken, regardless of the expense of harvesting, threshing, and stacking. We perceive no error in this ruling. The sheriff had deprived Mead of the possession of his property without his consent, and he was entitled to recover his property or the value of his interest therein, without paying the charges
In a case of trover, when the defendant’s conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, willful negligence, or wrong, the value of the property taken and converted is the measure of just compensation. (Wells on Replevin, § 617.) But in a case of replevin, if the law permits the action, the plaintiff is entitled to recover the specific personal property'‘described in his petition, or in the case of a mortgagee, the debt and interest secured thereby. And where the defendant gives a redelivery bond, and the delivery cannot be had to the plaintiff, the plaintiff is entitled to recover the value thereof, as well as his damages for the detention; or in a case like this, his debt and interest. In this case, Mead, without making any demand, was entitled to the possession of the wheatjwhich had been levied upon by the sheriff. (Shoemaker v. Simpson, 16 Kas. 52.) Prior to the commencement of his action, it was not necessary for him to tender any charges or expenses to the said sheriff; and it not being necessary for him in the first instance to make such a tender, or pay therefor, he could not be compelled thereafter to pay the expenses incurred by the sheriff in harvesting and taking care of the wheat.
V. Upon the trial, one E. S. Bertram was permitted to testify?as to the contents of a lease executed by George B. Wilcox, to the owner of the premises upon which the wheat was grown. There was no sufficient foundation laid for the introduction of evidence of this character, and therefore the contents of the lease were improperly received. We do not' think, however, that this evidence was very material; and if the district court had not received improper evidence concerning?the future advances furnished upon a parol agreement subsequent to the execution of the mortgage, and had not given an erroneous instruction thereon, the judgment would not be disturbed. For these latter errors, however, the judgment of the district court must be reversed.
