Baxter v. Spencer

Graves, J: Baxter owned a yoke of oxen in 1874 subject to a mortgage made by one Holmes to Spencer. The mortgage was in common form to secure sixty dollars and fifty cents, November thirtieth, 1874, with interest at ten per cent. No place of payment was expressed. Baxter was in possession, and before the mortgage fell due Spencer. called on [326] Baxter to take possession on it. Thereupon Baxter gaye to Spencer in writing on a copy of the mortgage in Spencer’s hands, his promise of guaranty of payment of the mortgage; and that he would pay him two dollars for his trouble, and hold the cattle until payment. Spencer thereupon allowed them to remain in Baxter’s possession. This occurred on the sixth of July, 1874, or about fiye months before the mortgage was to fall due. On the third of December, and whilst the cattle were in Baxter’s possession, and at a place some distance from his residence, Spencer seized and drove them away without Baxter’s knowledge or consent. Baxter then brought replevin; but under the charge by the court Spencer recovered. On the trial the foregoing facts appeared. There was also evidence tending to prove that when Baxter made his undertaking in July he offered payment, and Spencer refused it on the ground that the money was not due and he preferred it should stand on interest; that it was then mutually agreed that payment should be made at Palmer’s store in Camden, and that the copy of mortgage having his guaranty of payment should be left at the store two or three days before maturity, to consummate satisfaction; that two or three days previous to the thirtieth of November Baxter called at Palmer’s store for the mortgage in question, and it appeared that it had not been left; that on the thirtieth of November Spencer went to Palmer’s store and inquired if Baxter had left any money there to pay the mortgage, and was informed by Palmer that Baxter had been there two or three days before, and had asked if the mortgage had been left there for him to pay, and had been told by him, Palmer, that it was not there, and had not been brought there; that Spencer then procured Palmer to write Baxter that he, Spencer, would be at the store on the ensuing Friday, December fourth, for the money or the oxen; that Baxter received the letter on Wednesday, and in accordance therewith called at Palmer’s store on the morning of Friday the fourth of December, and paid in and left the money to satisfy the [327] mortgage, where it has since remained for that purpose; that Spencer, without having suggested any other time or place of payment, or any change of purpose, or any intent to seize the cattle before Friday, actually seized and drove, them away, as before stated, on the day previous. The court, among other things, charged that if Baxter did not have the money at Palmer’s store until Friday, December fourth, and Spencer took the cattle on the third, the taking was lawful, and Baxter not entitled to recover. We think the court erred. The evidence conduced to show, not only a waiver of all right to take advantage of non-payment on the thirtieth, but also a distinct appointment by Spencer of Palmer’s store as the place, and the fourth of December as the time of payment, and it was entirely competent to make the arrangement. — Franchot v. Leach, 5 Cow., 506; Robinson v. Batchelder, 4 N. H., 40; Manning v. Burges, 1 Chy. Cases, 29. And there was no evidence that Spencer had reasonable cause for thinking on Thursday that his security would be endangered by deferring seizure until the next day, and which he had himself set for payment. Besides, the evidence was strong to create an inference that his declarations and conduct were meant to mislead Baxter and afford a pretext for seizing the property. — Borden v. Borden, 5 Mass., 67; Frazier v. Cushman, 12 Mass., 277; Gilmore v. Holt, 4 Pick., 258. If the evidence referred to was satisfactory to the jury, Spencer had no' right to take the property ,ou Thursday, and in taking it he was a wrong doer, and the payment at Palmer’s the next day, in accordance with his own request, was a satisfaction. The judgment should be reversed, with costs, and a new trial ordered. The other Justices concurred.