Johnson Bros. v. Selden

DOWDELL, J. The appellants concede that under the authority of McCrummen v. Campbell, 82 Ala. 566, the court was justified in sustaining the demurrer to the complaint for misjoinder of counts, but now seek to have us review and overrule that case. This we are unwilling to do. In the case of Mahan v. Smitherman, 71 Ala. 563, cited by counsel for appellant, the question of a misjoin-der was not raised, and hence that case cannot be regarded as an authority against the proposition decided in McCrummen v. Campbell. The case of L. & N. R. R. Co. v. Cofer, 110 Ala. 491, presented a question different in principle from the one under consideration, and is therefore not in point. The complaint as amended declared upon a mortgage given by the defendant to the plaintiffs, describing the same as a bond, and claiming a certain amount specified in the complaint as due plaintiffs under it. Among other pleas, the defendant filed a plea of set off. No objection by demurrer or otherwise, was raised on this plea as to form or sufficiency, but issue was taken on it. Under this plea, the evidence of the value of the personal property taken under the mortgage, and which was objected to by the plaintiff, was relevant and admissible. Although the mortgagee, by the terms of the mortgage, was authorized to sell the personal property embraced in the mortgage at private sale, this did not relieve him, in taking possession of and selling the property, from the duty of acting in the utmost good faith in selling the same. In selling the property at private sale for the satisfaction of his mortgage debt, it was his duty to sell it at a fair and reasonable valuation, and failing to do so he became liable to the mortgagor for such failure. We think there can be no doubt of the right of the mortgagor to [422] show bis claim against tbe mortgagee, by showing tbe unfairness of tbe sale, and to this end, that tbe property was sold for greatly less than its fair and reasonable value. See Jones on Chattel Mortgages (4th ed.) p. 702 § 708. Here tbe property, which consisted of different items, such as mules, wagon, carriage, and farm products, was sold en masse or in lump. This, in itself, was prima facie evidence of unfairness.' — Jones on Chattel Mortgages, (4th ed.), p. 781, § 797. Tbe question of value was one for tbe jury. Tbe fact that tbe sale was made by tbe assignee of tbe mortgagee, while tbe mortgage was in tbe bands of such assignee, cannot change tbe rule. Tbe assignee in this case, to all intents and purposes, stood in tbe shoes of tbe mortgagee in talcing possession of tbe property and selling tbe same. Under tbe evidence tbe trial court very properly refused tbe written charge requested by tbe plaintiff. We find no reversible error in tbe record and tbe judgment will be affirmed. Affirmed.