227 P. 294 | Or. | 1924
The ruling of the court on the admissibility of the testimony is not seriously urged in this court. The ruling of the court on the admission and rejection of testimony did not constitute reversible error. No new principle is involved justifying any further enlargement in this opinion on those rulings.
It is contended by the appellant, who was defendant in the Circuit Court, that the instrument given to the plaintiff as security by the Inland Motor Company did not constitute a chattel mortgage; that not having been recorded it was void as to creditors; that the plaintiff having consented to the sale of the car
It has been held by this court that a similar instrument constituted a valid chattel mortgage between parties thereto and creditors having knowledge thereof: Teshner v. Roome, 106 Or. 382, 387, 389 (210 Pac. 160, 212 Pac. 473). In page 392, the court, speaking through Mr. Justice McCourt, said:
“The chattel mortgages given by the firm to plaintiff were valid between the parties notwithstanding the oral understanding, whereby plaintiff allowed the firm to sell and dispose of the mortgaged property, upon condition that the firm' should keep a strict account of sales, and promptly pay the same over to plaintiff, that condition having been observed by the parties.” (Authorities cited.)
Again, in page 394, the court announces the rule as follows:
“Notwithstanding the statutory declaration last referred to, it is firmly established in this state that the title and all rights of an attaching creditor are subordinate to prior valid liens upon the attached property, of which he had actual knowledge or sufficient notice to put him upon inquiry.” (Authorities cited.) Wiggins Co. v. McMinnville Motor Gar Co. 111 Or. 123 (225 Pac. 314).
It is earnestly contended that the defendant did not have knowledge of the chattel mortgage held by the plaintiff against the car. This contention is based upon the well established principle of law that knowledge acquired by an officer or agent of one corporation while acting as an officer or agent of another corporation is not imputable to the first corporation. The defendant cites a long list of authorities: 4 Fletcher, Cyc. Corp., pp. 3439, 3442 and 3443, note 95; Utah Construction Co. v. Western Pac. Ry. Co.,
The jury would have been justified in holding that Austin acquired knowledge of the mortgage in favor of the plaintiff on the sedan car. The evidence disclosed that the execution of the mortgage was authorized at a meeting of the board of directors of the Inland Motor Company. No question is raised about the indebtedness of the Inland Motor Company to the plaintiff.
If the said Austin was the agent of the defendant for the purpose of adjusting plaintiff’s claim, the knowledge of the said Austin in regard to the lien of the plaintiff could have been properly imputed to the defendant. However, all of these matters together are certainly sufficient evidence to justify submitting the question of fact here involved to the jury.
It is further contended by the defendant that consent by a chattel mortgagee that the mortgagor may sell the mortgaged property constitutes a waiver of the lien on the proceeds rather than a transfer thereof to the proceeds, and the promise of the mortgagor to apply the proceeds of the sale on the debt is merely a personal obligation. This principle is supported by a large number of cases cited in defendant’s brief, but our attention has not been directed to any case decided by this court to that effect: Maier v. Freeman, 112 Cal. 8 (44 Pac. 357, 53 Am. St. Rep. 151); White Mountain Bank v. West et al., Trustees, 46 Me. 15; Moore v. Jacobucci, 70
The defendant took advantage of its peculiar relation to the Inland Motor Company to receive and retain money which belongs in good conscience to the plaintiff. It utilized that relation to take money that the Inland Motor Company would no doubt have paid to plaihtiff if its affairs had been under independent management.
It is contended that the court erred in giving certain instructions, and in refusing to give other instructions requested by the defendant. An examination and comparison of the instructions given by the court and refused to be given discloses that in the main the difference between the instructions given and those requested and refused by the defendant is this, — that the instructions requested and refused, bearing upon the question of ratification, omitted the very important element of knowledge on the part of the plaintiff in referring to the authority of plaintiff’s agent in the transactions involved in the case. The court gave the two instructions requested by the defendant after incorporating in the logical and proper position this language: “"With knowledge of such agreement if there was any such agreement.” The instructions as given by the court properly expressed the law. The defendant complains «of the following instruction:
*413 “If you find from the evidence in this case that this contract Exhibit ‘B ’ was executed and delivered as a chattel mortgage to secure the balance due upon this promissory note Exhibit ‘A’ and that the defendant Wallowa Milling & G-rain Company, its officers or agents had knowledge of that fact, and after-wards the said Wallowa Milling & Grain Company received from Dr. Gregory a check for the sum of $1,500 as part payment for the sale of this Nash sedan car to him, then I instruct you that the said Wallowa Milling & Grain Company received said check and money for the use and benefit of the plaintiff to the extent of the amount remaining due and unpaid upon said promissory note Exhibit ‘A.’ And if you further find that there then or thereafter remained due and unpaid thereon the sum of $600, then I instruct you that plaintiff is entitled to a verdict against the defendant Wallowa Milling & Grain Company for the said sum of $600 with interest thereon at six per cent per annum from the 10th day of October, 1921. There is no question I will state under the evidence in this case but that the sum of $600 was still due and unpaid on the promissory note and if you find that the amount had not been paid under the settlement that is claimed by the defendant in this case.”
The reasons heretofore assigned in this opinion for sustaining the court’s ruling on the motion for a nonsuit are sufficient to sustain the court’s instruction quoted above. Under the facts in this case the jury was properly instructed with regard to the knowledge of the defendant concerning the chattel mortgage. The instruction quoted properly states the law under the testimony adduced at the trial. It is sufficient to say as to the other instructions requested by the defendant and refused by the court that they are sufficiently covered by the instructions given, and no error was committed in refusing to give the instructions in the particular language re