Holden & Martin v. Gilfeather

Munson, J. Plaintiffs held a valid recorded mortgage of a horse, executed by one Phelps. Phelps traded this horse to defendant for a yoke of oxen, without the knowledge of plaintiffs, and without informing defendant of the incumbrance. Defendant -reserved a lien on the oxen to secure boot money, but failed to record the lien. A few weeks later, plaintiff Holden told defendant of the mortgage, and defendant wanted plaintiffs to release it. Holden said he would see the oxen, and if it was a fair trade plaintiffs would take a mortgage on the oxen and release the horse. .Soon after this, Phelps gave plaintiffs a mortgage of the oxen, conditioned for the payment of the note described in the mortgage on the horse. Five days later, this mortgage was placed on record. After the above interview, at a time not definitely found, one of the oxen died. [408] Plaintiffs took possession of the remaining ox under their mortgage soon after it was recorded, and a week later defendant took the.ox from plaintiffs’ possession, and it was sold on the lien before suit was brought. Plaintiffs had no knowledge of defendant’s lien until after they had taken possession ■of the ox. Plaintiffs and defendant had an interview after defendant took the ox and before it was sold, in which it was agreed that plaintiffs would waive their claim to> the horse, .and should have the ox. In the words of the finding, “defend-ant repudiated this agreement.” The agreement just stated was found from testimony taken subject to defendant’s exception. The evidence is now ■claimed to have been inadmissible because of the Statute of Frauds. We think the agreement was not a sale of goods •within the meaning of the statute. The mutual undertakings were merely waivers of the claims of the respective parties .■arising out of previous transactions. Clark v. Duffey, 24 Ind. 271; Mygatt v. Tarbell, 78 Wis. 351; Pleasants v. Blodgett, 39 Neb. 741. The defendant’s waiver of his claim of a lien on the ox left to the plaintiffs an undisputed right under their mortgage from Phelps. The plaintiffs’ waiver of their claim to the horse left the defendant’s title to- it from Phelps unincumbered. So- the finding is based upon evidence properly received, and the agreement is in the case. The case cannot be disposed of on the ground that tire taking of the last mortgage discharged the first. There is no finding that defendant was ever notified that plaintiffs had concluded to make the exchange of securities, and no finding thdt the mortage of the oxen was in fact taken in pursuance ■of the talk had in regard to- it. The taking of that mortgage was consistent with its being taken to replace the mortgage on the horse, and equally consistent with its being taken to hold [409] as additional security. We cannot say that its procurement operated as a release of the horse, for the plaintiffs afterwards treated their mortgage upon the horse as a subsisting claim. They were to' have the ox and waive their claim to the horse. The understanding arrived at in the final interview was a valid agreement. The mutual promises of the parties afforded a sufficient consideration. If the taking of the mortgage on the ox was not to be treated as a shifting of security, the plaintiffs' right to the horse was undeniable. The claims arising out of the defendant’s failure to record his lien on the ox and the fact that plaintiffs’ mortgage of the ox was taken to secure a pre-existing debt, were claims that could be honestly made. See Wilder v. St. Johnsbury & Lake Champlain R. R. Co., 65 Vt. 43, 25 Atl. 896. It is to' be presumed that the respective positions of the parties were taken in good faith, in the absence of any finding to the contrary. There is no suggestion of any ground upon which the validity of the compromise agreement could be questioned. The agreement continued in force notwithstanding the attempted repudiation. A repudiation of a contract is something said or done by a contracting party to indicate that he will not perform, or further perform, his contract. It is an essential element of a repudiation that there be something still to be performed by the repudiating party in the future. Wald’s Pollock on Contracts, 3d ed. 333. This agreement was not executory. It was nothing but a reciprocal waiver of conflicting claims, and the waivers were effective as soon as agreed upon. It was not an agreement on the part of the plaintiffs that they would discharge their mortgage of the horse on the record, nor an agreement on the part of the defendant that he would bring back the ox and deliver it on the plaintiffs’ premises. It was an understanding arrived at to determine the [410] rights of the parties, and left the results to follow as they might from the rights so- determined. The agreement would have barred a further assertion of the plaintiffs’ claim to the horse, although not discharged of record. The plaintiffs’ right to' the ox from the time of the agreement was the same as if it had been in their possession. The plaintiffs are entitled to maintain trover. As we have seen in disposing of the question of evidence, this was not a sale or-exchange of properties. The agreement entered into, although essential to' the recovery, is not the basis of the suit. The suit is founded on the title obtained from Phelps, perfected by the defendant’s waiver of his lien. A return of the ox would not have been by virtue of a sale from defendant, but as a reinstatement of the possession plaintiffs had taken under their mortgage from Phelps. Defendant’s wrong was not a failure to deliver property he had sold, but a tortious-appropriation of property left in his possession. Judgment affirmed.