Thurm v. Wall ( 1954 )

HOOD, Associate Judge

(dissenting).

The facts in this case are relatively simple. Mrs. Jackson held a promissory note executed by Welch, with an unpaid balance of $590, secured by a duly recorded chattel deed of trust on certain household furniture and furnishings. She turned the note and deed of trust over to Thurm for collection and when the note was in default authorized him to use his discretion in obtaining a settlement. Thurm authorized Welch to sell the furniture and agreed to accept the proceeds in full payment of the balance of the note, even though, as was anticipated, the proceeds of the sale would not equal the unpaid balance of the note. Welch delivered the goods to Weschler, an auctioneer, with directions to sell. Wesch-ler sold the goods and the net proceeds amounted to $210.06. Before Weschler could make disbursement of the proceeds Wall sued Welch and served a writ of attachment on Weschler. The question is which of two creditors of Welch is entitled to the money in the hands of the auctioneer. One creditor is Mrs. Jackson, the holder of the chattel deed of trust note, and the other is Wall, an attaching creditor.

This question has arisen in numerous cases. There is authority that on the sale of mortgaged chattels by the mortgagor pursuant to an agreement with the mortgagee that the mortgagor shall make the sale and apply the proceeds to the indebtedness secured by the mortgage, that a creditor of the mortgagor who attaches prior to payment of the proceeds to the mortgagee has a superior claim to that of the mortgagee;¹ but there is also authority that under the circumstances of the particular case the right of the mortgagee is superior to that of the creditor of the mortgagor.² The authorities cannot be reconciled, but I think that we should hold in the circumstances of this case Mrs. Jackson’s right to the proceeds of sale was superior to that of Wall. Wall, an attaching creditor of Welch, had no greater right to the funds than did Welch himself. Mrs. Jackson had a liert on the chattels which lien she waived by consenting that Welch make the sale, but in my view her equities are far greater than those of Wall and I think she was entitled to prevail.

The point is made by Wall that Thurm is not the real party in interest. However, it appears that Mrs. Jackson assigned her claim to Thurm for the purpose of collection and we have held that an assignee of a chose in action, even though an assignee for collection only, may maintain an action in his own name.³

1 . An example of such authority is Moore v. Jacobucci, 70 Colo. 171, 197 P. 1015. See also 10 Am.Jur., Chattel Mortgages, § 194; 14 C.J.S., Chattel Mortgages, § 266.

2 . See Martz v. Big Horn Glass Co., Mo.App., 269 S.W. 697; Kramer v. Burlage, 234 Wis. 538, 291 N.W. 766; Middleton Lumber & Fuel Co. v. Kosanke, 216 Wis. 90, 256 N.W. 633; Thex v. Shreve, 38 Wyo. 285, 267 P. 92; Tyler Production C. Ass’n v. Tyler State Bank & Trust Co., Tex.Civ.App., 178 S.W.2d 886.

3 . Compton v. Atwell, D.C.Mun.App., 86 A.2d 623, affirmed, D.C.Cir., 207 F.2d 139.