220 P. 578 | Okla. | 1923
This suit is by Wylie Snow, as trustee in bankruptcy of O.H. Roe, doing business as Centrahoma Drug Company, against R.D. Cody and E.A. Hightower, a copartnership under the firm name of Cody Hightower, and R.D. Cody and E.A. Hightower individually. The action is for conversion of certain drug stock, of the kind ordinarily and generally known to be kept in a drug store.
The defendants, in April, 1918, sold to the bankrupt, O.H. Roe, a stock of drugs, including fixtures. They were paid a part of the price, and notes and mortgage taken on the drugs, etc., furniture, and fixtures for the unpaid purchase money. The buyer ran the store, using by agreement with the mortgagee, as plaintiff offered to prove, the moneys arising therefrom to defray expenses, living, etc., and purchased other goods of like character from wholesale vendors on credit to the extent of several thousand dollars, which goods were commingled with the old stock. After the maturity of the notes and mortgage the mortgager voluntarily turned the stock over to the mortgagees for foreclosure. They went through the form of foreclosure of chattel mortgage on all the goods in the store February 5, 1919, and the mortgagees purchased the same to satisfy their notes and mortgage.
The mortgage on the stock of drugs did not, by its terms, cover the after-acquired property. Such a mortgage covers and creates a lien on only the goods in the store at the time it was executed. Snow v. Ulmer,
Evidence offered by the plaintiff to show the agreement of acquiescence of the mortgagees in the application of the moneys arising from the sales to expenses, etc., was all excluded. This was directed at whether the mortgage was void as against creditors. See Bank of Perry v. Cooke,
In Kane v. Lodor,
"The lien of a chattel mortgage of a retail stock of goods at the time of enforcement rests only on the goods in stock at the time the mortgage was executed."
See. also, Tolerton Stetson Co. v. First Nat. Bank,
Applying this rule, the defendants were liable in conversion for the value of the goods sold which were not covered by the mortgage, and the action of the trial court in not permitting plaintiff to prove the elements of his case and in instructing the jury for defendants was error.
The judgment of the trial court is reversed, with instructions to grant plaintiff a new trial.
McNEILL, KANE, NICHOLSON, and COCHRAN, JJ., concur. *83