82 Mo. App. 30 | Mo. Ct. App. | 1899
This is an action of replevin which Was brought before a justice of the peace to recover three horses. The plaintiff had judgment in the circuit court and defendant appealed.
The facts which the evidence tends to establish are these: One Brandt was awarded by the Hnited States a contract for carrying the mail between Grant City and Sheridan, in this state, at seventy-five, dollars a quarter. Brandt afterwards sublet this contract to plaintiff, and also sold him the spring wagon hereinafter referred to. Plaintiff and defendant entered into a written contract by which it appears that in consideration of seventy-five dollars plaintiff_sold defendant said spring wagon and the said mail route, one-half of said purchase price to be paid whenever payment should be made for carrying the mail on said route for the first quarter and the second instalment when payment should be made on the second quar
“It is further agreed by the said Brown that he shall faithfully and punctually carry the mail according to the government schedule to and from the points named above, and that he will at all times deport himself in accordance with the postal regulations so that the said Turner, nor his grantors nor bondsmen shall be in anywise liable to the government therefor.
“It is further agreed that in the event the said Brown shall fail to carry out and perform all the duties of mail carrier as aforesaid, then and in that event the said Turner is hereby empowered to enter the premises wherein said property may be found and take possession of the same, but the title and possession of said property as aforesaid shall by these presents then become fully vested in the said Turner as aforesaid.
“In case the said Brown shall comply with all the stipulations of the foregoing contract, then and in that event, these presents, so far as they relate to the title to the aforementioned hack, harness and horses, shall be void and the title thereto shall vest and remain in t-he said Brown.”
The defendant, in pursuance of said contract, carried the mail on said route from July 18 to September 9, when he abandoned it. The plaintiff was in consequence thereof compelled to resume carrying it himself. The defendant declining to deliver said property, as he had bound himself under said contract to do, this suit was instituted:
The instrument effected a present transfer of the title to the property specified therein to the plaintiff, subject to be defeated by the noncompliance by the defendant with all tho
We can not lend countenance to the idea that it was the intention of the parties that in the event the defendant made default'in the performance of the conditions of the contract that the plaintiff’s title should thereby become absolute, and that the defendant should, in that event, have no equity of redemption. It seems clear to us that the transaction was a mortgage of indemnity. The inference to be deduced from the language of the instrument and the circumstances surrounding its execution, as disclosed by the evidence, is that it was the intention that the plaintiff should be thereby afforded indemnity for any loss or damage to which he might be subjected by reason of the defendant’s default in performing the conditions of the contract. It might well have been that in consequence of such default the plaintiff was subjected to considerable loss and damage. It may have been that the mail
It seems ifco us that the said mortgage was to stand as a . security for the payment of the seventy-five dollars, the purchase price of the spring wagon. If each of the two deferred instalments were not paid at the times therein stipulated, this was also a breach of the conditions of the mortgage which authorized the plaintiff to take possession of the mortgaged property. It was competent for the defendant to show that this debt was paid before this suit was begun, and that the plaintiff was not entitled to possession for that reason. If tho defendant failed to pay, or caused to be paid all of said seventy-five dollars, or any part thereof, at the Stipulated times, or failc-d to perform the conditions of the contract in respect to carrying the mail, the plaintiff, in consequence of one or both of such defaults, became entitled -to the possession of the property. He had a right to hold and subject it to sale, and out of the proceeds to discharge said debt, if not paid, and to make himself whole for any direct loss sustained by reason of' the defendant’s default in respecit. to the mail contract. Until the defendant’s equity of redemption is properly foreclosed he may redeem by the payment of the said debt, or the part remaining unpaid, if any, and the amount of the actual loss or damage sustained by plaintiff growing out of the defendant’s default in carrying the mail.
It appears from the evidence that before this suit was commenced the defendant re-delivered the springwagon to the plaintiff, but whether it was received in discharge of the purchase price due plaintiff, or how, is not disclosed. If it was taken back in discharge of ¡the debt, then that operated as a satisfaction of the mortgage as to the seventy-five dollar debt.
If Brandt retained for plaintiff' any part of the money
It follows from this that the defendant’s fourth instruction, which was refused, should have been given.
The judgment will be reversed and cause remanded.