Johnson v. Skowhegan Savings Bank , 93 Me. 516 ( 1900 )

Haskell, J.

One W. H. Clark, being about to engage in a lumbering operation, and in need of funds to carry it on until he could sell his logs, arranged with the defendant bank to make the necessary advances, and. secured the bank by mortgage upon the product of the operation to secure the same made within six months. The advances amounted to 112,500, for which the bank took Clark’s notes.

Clark sold the logs to Edward Ware, plaintiff’s assignor. Ware made notes to the order of Clark and sent them by mail to the bank, receiving in reply, “Yours of the 15th inst. enclosing notes for Clark logs received. I think they are correct.” In about a month, Clark went to the bank, within the six months named in the mortgage, and gave-his note for a further advance of $600 and indorsed the Ware notes, amounting to $15,687.54, in blank and left them with the bank. Soon afterwards Ware failed, and the defendant bank enforced its mortgage upon the logs. Ware’s assignee sues to recover their value, asserting that the mortgage debt had been paid by the Ware notes.

The transaction does not sustain this contention. Ware bought the logs knowing them to be mortgaged. He sent his notes for more than was due on the mortgage to the bank, payable to the order of Clark, so that Clark could not appropriate them and leave the mortgage outstanding. Ware’s purpose was to have the proceeds of the notes applied to the mortgage debt. He failed, and voluntarily assigned in less than forty days after he sent the notes. He must have known his own condition, and, if an honest man, could not have intended that notes due in three, six and nine months, respectively, should have operated to discharge the mortgage and turn the mortgage security from the bank to his own creditors. That would have been a fraud. Nor could Clark so have understood the transaction, for the notes amounted to more than his loan, and he neither received the balance in his favor nor took up his own notes and procured a discharge of the mortgage. The substance of the transaction was a sale of mortgaged logs, the vendee to pay the mortgage in three, six and nine months, when his notes for the purchase money should fall due, until which time it was hoped there would be no necessity for enforcing the mortgage. The bank never intended to surrender its security, and never did.

Judgment for defendant.