109 Minn. 76 | Minn. | 1909
Defendant was the owner of a hotel building in Mankato, this state, fully equipped with all necessary furniture and fixtures, and on July 18, 1906, he leased the building to one Town for the term of five years. As a part of the same transaction, and at the same
Plaintiff paid defendant the first maturing chattel mortgage note at about the time he took possession of the property ¿ so that there was nothing due thereon at the time of the foreclosure presently to be mentioned. He continued in possession and conducted the hotel for about three weeks, or until September 18, 1907, when he vacated the same and removed elsewhere. It is his claim that he vacated the premises because defendant refused to give him a new lease, and the evidence tends to show that he repeatedly demanded one and that defendant refused to execute it. The reason for defendant’s refusal to execute a formal lease is left somewhat cloudy by the evidence; but we infer that he was laboring under the impression that, inasmuch as Town had not assigned in writing his lease to plaintiff, defendant could not, without involving himself in trouble, execute another lease to plaintiff without first extinguishing in some way the rights of Town. This he evidently thought could be done by a foreclosure of the chattel mortgage on the hotel furniture, which would
When plaintiff vacated the premises, he claims to have left therein all the personal property which he received from Town at the time he took possession, all of which was, as already stated, covered by the chattel mortgage. Immediately after plaintiff left the premises, defendant took possession of the personal property, and, although there was at the time nothing1 due on the mortgage, foreclosed the same, and became the purchaser at the sale. Since that time defendant, or some member of his family, has conducted the hotel as a rooming house, using in connection- therewith the hotel furniture and fixtures. Thereafter, on September 24, 1908, a year after he vacated the premises, plaintiff brought this action against defendant, on the claim and theory that the foreclosure of the chattel mortgage was unauthorized and void and amounted to an unlawful conversion of the property. The defense, more particularly referred to hereafter, was that the mortgage was rightfully foreclosed. Plaintiff had a verdict, and defendant appealed from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.
Of the several assignments of error we deem it necessary to refer only to those challenging the. correctness of certain portions of the court’s instructions to the jury. We may, however, in view of a new trial of the action, say that the contention of defendant that, because at the time the action was commenced plaintiff did not have the right to the possession of the property, the action cannot be maintained, is not well taken. The action is for the wrongful conversion of the property, and the rights of the parties are controlled by the conditions existing at the date of the alleged conversion. Hodge v. Eastern Ry. Co. of Minn., 70 Minn. 193, 72 N. W. 1074; Jellett v. St. Paul, M. & M. Ry. Co., 30 Minn. 265, 15 N. W. 237. Besides, the terms of the chattel mortgage gave the right of possession to the mortgagor, to whose rights plaintiff succeeded, and defendant, as mortgagee, had no right to it, except after default, or under the insecurity' clause, and then only for the purpose of foreclosure. Defendant was not holding the property as mortgagee, at
We come, then, to what we regard the only substantial error presented by the record. Though no part of the mortgage indebtedness was overdue at the time defendant foreclosed his mortgage, yet he claimed the right to do so under the insecurity provisions thereof, and for the reasons (1) 'that plaintiff, who had succeeded to the rights of Town, the mortgagor, had wholly abandoned the property, and (2) that the property had not been properly cared for; that it had been wasted and greatly deteriorated in value; that a part thereof had been secretly removed ’from the premises, disposed of, and converted to the use of either plaintiff or Town, by reason of all of which defendant deemed himself insecure, and to protect his security, and prevent a further waste and loss of the property, took possession of what remained on the premises at the time plaintiff vacated the building and foreclosed the mortgage.
The terms of the mortgage fully authorized a foreclosure for the reasons just stated, if the facts justified defendant in believing in good faith his security unsafe. If the facts sustain his contention in this respect, the foreclosure was legal and extinguished further claim to the property by plaintiff; there being no suggestion that the foreclosure was not in all other respects in conformity with the law. But plaintiff denied that he had abandoned the property, or that it had become wasted, lost, or destroyed, or by neglect deteriorated in value, or that defendant had any just or reasonable cause for
The court charged the jury in substance and effect that if plaintiff wholly abandoned the property, or if it by neglect had been wasted, lost, or made way with, by plaintiff or Town, in consequence of which defendant in good faith believed himself insecure, he had the lawful right to foreclose his mortgage, even though no part of the secured indebtedness was then due, unless, said the court, before the commencement of the foreclosure proceedings plaintiff tendered defendant payment of the mortgage debt in full.
The court further charged that there was evidence tending to show such a tender, and, if one was in fact made, then defendant could not say that he deemed himself insecure, even though the conditions relied upon by him in justification of the foreclosure in fact existed, and that his subsequent foreclosure of the mortgage after the tender would be unlawful. In this instruction we are clear the learned court erred.
We discover no evidence in the record to support or justify the conclusion that a tender of payment was made by plaintiff. The only evidence tending in that direction was that given by plaintiff and his attorney. Plaintiff testified that at one stage of the negotiations had between the parties with reference to a new lease of the hotel, after defendant had intimated that to extinguish all rights of Town it was necessary to foreclose the mortgage, he offered to pay the mortgage debt. We here quote all the testimony pertinent to the subject. “Q. Well, did you at that time offer to pay the mortgage? A. I would not be positive whether I said I would do it, or that I could do it if it was necessary. That I could pay the whole thing up,
This testimony, at most, showed a readiness or willingness on the part of plaintiff to pay the debt at the time; but it falls short of showing an unconditional tender. The offer of payment was hypothetical, and conditioned upon the wishes of defendant. Plaintiff, at most, said that he would pay the debt if defendant wished it paid. This does not meet the requirements of the law of tender, and did not have the effect,, as the trial court instructed the jury, of extinguishing the lien of the mortgage. Hunt, Tender, 3, 2.22; Chase v. Welsh, 45 Mich. 345, 7 N. W. 895; Niederhauser v. Detroit, 131 Mich. 550, 91 N. W. 1028. Por this error a new trial must be granted.
We remark, in taking leave of the case, that plaintiff’s readiness and willingness to pay the mortgage, as indicated by the testimony quoted, is a proper fact for the consideration of the jury upon the question of defendant’s good faith in foreclosing his mortgage on the ground that he then believed himself insecure. But it is not, in view of the fact that defendant claimed at the trial that he did not discover the loss of part of the property until some time after the offer of payment was made, conclusive against him on the question of his good faith.
Order reversed.
