R. L. McDonald & Co. v. Swisher

Martin, C. J. 1. Case-made— Waiver of notice of settling. I. A preliminary question is raised by the defendant in error, who claims that the certificate of the Judge to the case-made is insufficient on its face ; and, further, that the defendant was not present personally nor by counsel at the settlement of the case-made, and had no notice thereof. The certificate is informal in some respects, but we think it sufficient, for it appears therefrom that the Judge settled and signed the case-made, and caused the same to be attested by the Clerk under the seal of the Court; and these are the chief requisites prescribed by section 548 of the Civil Code. The evidence also shows that the defendant, through his counsel, agreed that the case-made might be settled in his absence. The motion to dismiss is therefore overruled. 2. Chattel mortgage. Certain findings did not show void. II. The defendant in error further claims that the instrument called a “chattel mortgage” from Daly to R. L. McDonald & Co. is void upon its face for uncertainty ; and, if not so on its face, then i*5 is so under the findings of the Court that no note was executed, and that the indebtedness was upon an account,' not for $2,000, but for a smaller sum. After much consideration, we are led to adopt the view of the learned trial court in this respecr. Although both Daly and R. L. McDonald & Co. are mentioned as parties of the first part in the first clause of the mortgage, yet we think it sufficiently appears that Daly, whose name is [210] first mentioned, and who alone signed the instrument, was the party of the first part, and that R. L. McDonald & Co. were the parties of the second part to whom the sum of $2,000 was to be paid by Daly. This instrument was executed in the absence of R. L. McDonald & Co. and their agent or attorney. Daly did not know the exact amount due, and so fixed it at $2,000, perhaps intending to make a note for that amount corresponding in form with that mentioned in the mortgage. The mortgage was given to secure an indebtedness for goods sold and delivered, and, the Court having found that no actual fraud was intended by either party in this respect, we must hold that it was not void for any of the reasons stated in this paragraph. That it was not vitiated because of excess in the afnount, no fraud being intended, see Corbin v. Kincaid, 33 Kan. 649, 652; Hoey and others v. Pierron, 67 Wis. 262, 268. As to the parties, mortgagor and mortgagee, the instrument itself is sufficiently plain ; and if we apply the same rule to the consideration as that adopted in Griffiths ¶. Wheeler & Barber, 31 Kan. 17, and other cases decided by this Court as to the description of the property — namely, that with the inquiries which the mortgage itself would suggest, any person could ascertain the same —we think this mortgage is not void because the indebtedness was upon an account for goods and not upon a promissory note ; for this fact could have been ascertained by inquiry of either party to the instrument. And the fact that the note copied was not complete, but in blank, would be rather suggestive that the nature of the consideration and its amount were not exactly stated. [211] 4. Priority of mortgage over attachment. [210] III. We are forced to differ with the learned trial [211] judge as to the effect of taking a third mortgage to secure a bona fide indebtedness subject to-two others afterward adjudged by a court-to be fraudulent and void, there being no-pretense that the third mortgagee knew anything of the fraudulent nature of the two mortgages to which his own was made subject. The theory of the defendant in error and of the trial court is, that when the Coroner, representing the attaching creditors, succeeded in avoiding the two prior mortgages, he took the place of the holders thereof and came in ahead of the third mortgagee. It is certain,, however, that R. L. McDonald & Co. acquired on the property a chattel-mortgage lien which was three days prior to the liens of the attaching creditors ; and we cannot understand how this lien was either divested by or postponed to the subsequent attachments„ It is true that R. L. McDonald & Co. may have profited by the contest made by the Coroner representing the attaching creditors, but this was a legitimate advantage, and such as often takes place. We are cited to no authority by the defendant in error which sustains his position, and we know of none. On the contrary, there are several decisions holding the opposite view, either directly or inferentially. Eddy v. Ireland, 6 Utah, 147; Hoey and others v. Pierron, supra; Smith v. Post, 1 Hun, 516; Tronstine v. Lask, 4 Baxt. 162; 2 Cobbey, Chat. Mort. § 1044. For the foregoing error, the judgment must be reversed, and the cause remanded for further proceedings in accordance with this opinion. All the Justices concurring.