Lovejoy v. Chapman

Moore, J. (after stating the facts). — The evidence shows that on June 16, 1886, the defendant, by W. E. Mulhollan, his agent, loaned one hundred dollars to the plaintiff, and that, to secure the payment thereof, she executed and delivered to said Mulhollan a chattel mortgage upon some goods and canning machinery; that on June thirtieth, the defendant, by his said agent, loaned forty-five dollars more to plaintiff, and to secure the payment thereof, she executed and delivered to said Mulhollan a chattel mortgage for one hundred and forty-five dollars upon the same property; that the debt secured by the first mortgage was merged in the second; that on August seventeenth the defendant, by his said agent, loaned more money to the plaintiff, and she executed and delivered to said Mulhollan another chattel mortgage for two hundred dollars upon the' same property, which several mortgages were duly assigned to defendant. The evidence in relation to the amount of money loaned to plaintiff on August seventeenth is quite conflicting. The plaintiff testifies Chat she received a sum which, added to the one hundred and forty-five dollars she owed the defendant, made two hundred dollars, and that the former debts were merged in this mortgage; while the defendant testifies that he loaned her at that time two hundred dollars, and that this was in addition to the one hundred and forty-five dollars, and in this he is corroborated by the testimony of W. E. Mulhollan. The evidence further shows that plaintiff had a contract with Messrs. Mason, Ehrman & Co., of Portland, by which they agreed to purchase canned goods from her; and to further secure the defendant she issued an order on Messrs. Mason, Ehrman & Co., whereby she requested them to pay to W. E. Mulhollan one dollar per case for the first two hundred cases of canned goods shipped to them by her. This order they duly accepted, and agreed to pay upon said conditions. The plaintiff failed to deliver any goods to them upon said contract, but on September thirteenth she delivered to Messrs. E. S. Larsen & Co. two hundred [574] cases of canned Bartlett pears, which, they shipped to San Francisco on her account, and gave her a statement thereof, which she, on October eighth, duly assigned to said W. E. Mulhollan, who commenced an action against said Messrs. E. S. Larsen & Co. for the amount due thereon, and judgment having been rendered against him for costs, amounting to seventy-one dollars and ninety-five cents, he paid the same, and on July 25, 1887, reassigned said statement to plaintiff. The plaintiff, on April 12, 1887, for the expressed consideration of two hundred and twenty-five dollars, and in order to further secure the defendant, duly executed and delivered to him said land certificate, and he executed and delivered to her a writing, in which he agreed to reassign said certificate upon the payment of the amounts due, and interest. The plaintiff testifies that at that time a settlement was had, and that two hundred and twenty-five dollars was the whole amount due from her to him, while defendant testifies that he Ipaned her this two hundred and twenty-five dollars in addition to the former amounts. It appears that on the next day after the execution of said assignment, defendant loaned plaintiff twenty-five dollars, and since said assignment of the certificate, has paid to the railroad company eighty-three dollars and eighty-five cents as installments due thereon. 1. The conflict in the testimony as to the amount due the defendant renders the true account between the parties difficult of ascertainment. There are, however, some circumstances which seem to illustrate the dealings of the parties, and no doubt aided the referee in reaching a conclusion that the plaintiff’s theory was correct: 1. When the second loan was made of forty-five dollars, a new mortgage was taken for one hundred and forty-five dollars, and this would appear to indicate that when each loan was made it was added to the previous amount loaned, and a new mortgage taken to secure the whole sum. 2. When the order was given upon Messrs. Mason, Ehrman & Co. for two hundred dollars, if there had in [575] fact been three hundred and forty-five dollars due, the order would probably have been for more than the amount named therein; and, 3, the consideration of two hundred and twenty-five dollars, expressed in the assignment of the certificate, would appear to indicate that this was the amount then due. The referee had the advantage of seeing the witnesses and of hearing them testify, and from this fact he is better able to pass upon the weight of the evidence than any court can be from an inspection of the record; and, since there are circumstances which tend to corroborate him, we must conclude that his findings are correct, and that the defendant has inadvertently overlooked or forgotten that each mortgage or other security embraced all the preceding loans. 2. Appellant contends that the costs should not be taxed to him. It is true that the plaintiff did not tender any sum to the defendant for the redemption of the certificate; but the defendant did not allege that he held the property as security for a loan, or that he was ready or willing to reassign said certificate upon the payment of the amount due. Section 554, Hill’s Code, invests the trial court with a discretion in the taxation of costs in equity cases, and this discretion will not be reviewed, except in cases of an abuse thereof. 3. That the certificate was assigned as a security, there can be no doubt. That such a transfer is a mortgage, and that this fact may be established by parol, is the settled law of the state: Swegle v. Belle, 20 Or. 323 (25 Pac. Rep. 323). 4. The assignment having been executed as a mortgage, the defendant could not convert it into an absolute transfer without the consent of the plaintiff: Marshall v. Williams, 21 Or. 268 (28 Pac. Rep. 137). The decree will be affirmed.