Rosenthal v. Whitehead ( 1966 )

On Petition for Rehearing.

Mr. Justice McWilliams:

Although Whitehead’s petition for rehearing may not represent a complete change in position, nevertheless in our view it does represent a rather decided change in emphasis. In his petition Whitehead suggests that this is not an instance where Riordan and Morrison attempted to “pledge” the tractor in question to him as security for the repayment of his loan to them, but that under the circumstances disclosed by the record Riordan and Morrison on the contrary actually “mortgaged” the tractor to him as security for repayment of the loan. In other words, Whitehead is said to hold a chattel mortgage on the tractor. We do not so view the matter.

It is asserted that the trial court “found that Whitehead held a chattel mortgage on the subject tractor . . . .” We are unable to divine any such finding by the trial court. As a matter of fact, though the trial court did find that Riordan and Morrison had the “apparent authority to sell or mortgage” the tractor, the trial court rather conspicuously failed to make any finding as to whether Riordan and Morrison either “sold,” “mortgaged” or “pledged” the tractor to Whitehead.

Be that as it may, our re-examination of this record convinces us that as a. matter of law Riordan and Morrison did not “mortgage” the tractor in favor of Whitehead, but on the contrary merely purported to “pledge” the tractor to Whitehead as security for the repayment of the money which they borrowed from him.

The petition for rehearing is denied.