55 Iowa 520 | Iowa | 1881
— On the 2d day of October, 1877, Eobert W. Pool purchased of William Pool a retail grocery store, and executed therefor five promissory notes, each for the sum of $780.40, and due respectively in one, two, three, four and five years. To secure these notes Eobert W.-Pool executed a chattel mortgage upon property described as follows: “All the goods, wares, merchandise, fixtures, furniture and appliances used in and about the carrying on of a first-class retail grocery store, that are now in the house known as No. 422 Brady street, Davenport, Iowa, whether in the cellar, on the first floor, on the second floor, or wherever used, or had, or kept in connection with the business done at No. 422 Brady street, Davenport, Iowa, and on all such like goods, wares, merchan
On the 2d day of October, 1877, William Pool leased to Robert W. Pool a two story brick building known as No. 422 Brady street, Davenport, for four years from October 2,1877, at the yearly rent of $700, payable in equal monthly payments, the said Robert W. Pool “ covenanting that said rents, whether due or to become due, shall be a perpetual lien on any and all goods, wares, merchandise, now in, or hereafter to be put in, on or about said building, No. 422 Brady street, Davenport, Iowa, whether the same be exempt from execution or not.”
On the 21st day of April, 1879, R. W. Pool, being indebted in a large amount to the plaintiffs, executed and delivered to them a bill of sale, as follows: “Know all men by these presents, that I, Robert W. Pool, party of the first part, in consideration of $1,000 paid by Yan Patten & Marks, party of the second part, do hereby,sell and convey unto said party all my light, title and interest in and to the following personal property, viz.: One span of horses, double harness and spring delivery wagon used in delivering goods in the city of Davenport, Iowa; one span of horses, double harness and spring delivery wagon used in delivering goods in, the city of Rock Island, Illinois; one span of horses, double harness and spring wagon used in delivering goods in the city of Moline, Illinois, but all housed in the city of Davenport, Iowa, hereby'warranting to said'second party that I have frill right to sell and convey said property, and that there are no claims or liens as against the above conveyed personal property.” This bill of sale was filed for record May 13,1879, at 7:25 o’clock p. m.
On the 13th day of May, 1879, at about four o’clock r. m., Nathaniel Leonard entered the store of Robert W. Pool, and seized the contents of the store under the chattel mortgage to
A landlord’s writ of attachment issued out of the Circuit Court in an action of Sarah J. Pool, executrix, against Eobert’ W. Pool, for rent due upon the lease aforesaid, the return of the sheriff upon which writ is as follows: “ By virtue of the within attachment, and in pursuance thereof, I have this 13th
It is said in Burrell’s Law Dictionary that the word goods strictly seems to be applicable only to inanimate movables, being in this respect less comprehensive than chattels, which include animals. It is further said that the term merchandise is usually, if not universally, limited to things that are ordinarily bought and sold, the subjects of commerce and traffic. The fact that a thing is sometimes bought and sold is no proof that it is merchandise. The construction of these terms depends largely upon the connection in which they are employed. In the statute of frauds it is said they comprehend all corporal, movable property, but not notes, bills, etc. Benjamin on Sales, section III; Vawtee v. Griffin, 40 Ind., 593; Whitmore v. Gibbs, 4 Foster (N. H.), 488.
In the case of Curtis v. Phillips, 5 Mich., 112, the following provision was contained in a chattel mortgage: “All the goods of different varieties and binds in the store of said first party at, etc.” An iron safe was kept in the store for .use in the business, but not for sale. The question was whether the safe was included in the mortgage. The court says: “ The term goods, when used in contradistinction to real estate, would doubtless include all binds of movable personal properly, and even bills, notes, certificates of stock, etc. But it cannot be supposed to have that extent of meaning in the case of- this chattel mortgage. The question here is of intent, and we think it quite clear that when a merchant speaks of the goods in his store he must generally be understood to have reference only to the merchandise and commodities kept on hand for the purpose of sale, unless there be some particular reason which does not appear in this case to give the term a broader signification. This certainly is the popular sense of the term in this country when we speak of a merchant’s goods in his store. The case concedes that the safe was not kept for sale in the store, but for his own private use, and we are, therefore, of opinion that it was not the intention of the mortgagor to include the safe in the mortgage as a part of the goods, and that the mortgage, when taken iu connection with the facts found, cannot be construed so as to include it.” This reasoning is directly applicable to the case at bar. It need not be said that the word wares in this connection is not more comprehensive than the word goods. We are of opinion that the words goods, wares and merchandise, as used in this lease, cannot properly be so construed as
Further,-it is-to be observed that the lease provides that the rent shall be a lien upon all goods, wares and merchandise, now in, or hereafter to be put in, on or about said building. The horses, harnesses and wagons were kept in a barn three blocks from the building. They were never in tlie store, nor about- it, except to remain temporarily in the street in front of it. They were not on 'or about the building in the sense contemplated in the lease.
IV. The court denied the defendants a lien upon the notes, drafts, due bills, accounts, etc., embraced in the bill of sale to the plaintiffs. This property was not used upon the premises in the sense contemplated in section 2017 of the Code, and hence no statutory lien existed thereon. It is not, in our opinion, embraced in the term goods,.wares and merchandise, employed in the mortgage and in the lease. Erom what has already been said it is apparent from the circumstances under which these words were employed that the parties referred to the commodities kept on hand in the store for the purpose of sale. On the defendants’ appeal the judgment is affirmed. On the plaintiffs’ appeal,
Reversed.