Buffalo Pitts Co. v. Deeg , 30 S.D. 384 ( 1912 )

SMíTH, J.

This is an appeal from the circuit court of Beadle county. Preliminary to consideration of the case on its merits respondent moved the court to strike out the bill of exceptions, and 'dismiss the appeal for the reason, among other things, ihat appellant did not within 20 days after the verdict of the jury serve a notice of intention to move for a new trial. The record discloses that the verdict of the jury was returned and entered on the 31st day of December, 1910, and that no notice of intention to move for a new trial was served until the 31st day of July, 1911.

[1] It is well settled, however, that .the trial judge for sufficient cause may extend the time within which notice of intention may be served. The record in this - case discloses that Judge Taylor, the trial judge, allowed five extensions of time within which to serve such notice of intention. So far as the record before us is concerned, no reasons w'hatéver for granting these extensions appear. However, respondent in this motion does not raise any question as to the- grounds upon which these various extensions were granted, an'd for that reason, we are not called upon to consider whether the trial court was or was not justified in granting this large number of extensions. It is only necessary to note that the last order of extension is date July 3, 1911, and was for a period of 30 days from that, date, thus extending the time of service of the notice beyond the 31st day of July, 19x1, at which time the notice was' served. The time for settling the bill of exceptions was likewise extended by the same orders. It follows that neither the bill of exceptions nor the motion for a new trial can be stricken out upon the grounds urged.

[2] And, even though both were stricken out, the motion to dismiss the appeal would have to be denied, as no question is raised as to the regularity of the appeal itself, and the case would be before the court for review upon the judgment roll. [3] The action is claim and delivery by the Buffalo Pitts Company against William Deeg .to recover possession of a Buffalo Pitts special traction engine. The evidence tends to> show that "plaintiff sold and delivered the engine to Jacob and Joseph Wollman on August 19, 1910, at which time the Wollmans gave plaintiff a chattel mortgage on the engine and on certain live stock to secure payment of the purchase price, which chattel mortgage was duly filed on the 26th day of August, 1910, and contained a provision that, in case of default, plaintiffs were authorized to take possession of the mortgaged property for the purpose of foreclosure. Previous to the purchase of this new engine, the Wollmans had purchased a threshing outfit, consisting of a Nichols and Shepard engine and separator, from the defendant Deeg, and had executed to William Deeg a chattel mortgage on the Nichols and Shepard engine in the sum of $800 to secure a part of the purchase price. Some time prior to August, 1910,- the Nichols and Shepard engine was injured by an explosion which rendered it useless without extensive repairs and made it necessary for the Wollmans to purchase a new engine in order to continue threshing grain. Before the purchase of the new engine by the Wollmans, the plaintiff was told by them that Deeg would release his mortgage on the old Nichols and Shepard engine in order that they might turn it in as part of the purchase price on the new engine, and it appears that Deeg had told the Wollmans that he would release the mortgage on the old engine if the Wollmans desired to trade it in on the new engine. Under this arrangement, the new engine was delivered to the Wollmans on August 19, 1910, and on August 20, 1910, one •Rosing, an agent of plaintiff, went to the home of defendant, Deeg, and procured from him a release of the mortgage on the old Nichols and Shepard engine, and some time thereafter the plaintiff shipped the same to their St. Paul agency. About one month after the new engine was delivered to the Wollmans, for some reason not clearly disclosed by the record, they turned over possession of the new engine to the defendant, Deeg, and it remained in his possession until after default in the condition of the plaintiff’s mortgage. Upon default plaintiff sought to take possession of the engine for the purpose of foreclosure, and demanded possession from Deeg, who refused to surrender it. Plaintiff thereupon instituted this action. The complaint is in the ordinary form, alleging all the facts necessary to entitle plaintiff to possession for the purpose of foreclosure upon default. Plaintiff appeals from the judgment and an order overruling motion for a new trial. At the trial plaintiff offered in evidence the chattel mortgage executed by the Wollmans to plaintiff, evidence of default in the conditions of the mortgage, demand and refusal of possession, together with certain alleged damages for wrongful detention, and rested its case. The answer alleges defendant is entitled to possession of the engine by virtue of an agreement with plaintiff, by which defendant was given a first lien on the engine, to secure payment to defendant of $800 which Wollman Bros, owed defendant; that defendant, prior to these transactions, had a first mortgage for the sum of $800 on a thre-shing engine which he had theretofore sold Wollman Bros.; that plaintiff's agent told defendant he desired to trade to Wollman Bros, a new engine for the one defendant had sold them, and that, if defendant.would release his mortgage on the old engine, plaintiff would give him a first lien for the amount due on his mortgage on the new engine which they proposed to trade to Wollman Bros, for the old engine; that defendant agreed that, as soon as plaintiff gave him a first lien on the new engine, he would release the mortgage on the old engine, and plaintiff stated that they would give him a first lien on the new engine; that the plaintiff wished at once to repair the old engine, and asked defendant to sign a paper to give plaintiff the privilege of repairing the old engine, and which plaintiff represented would not in any way release or affect defendant’s rights under the first mortgage on the old engine; that defendant, relying on 'these statements, which were false and fraudulent, was induced to sign a paper without reading or ascertaining what said paper contained, believing it was a paper authorizing plaintiff to repair the old engine, and would not in any way affect plaintiff’s rights under his mortgage on the old engine, or release said mortgage; that defendant afterward ascertained that the paper he ■signed was a release of his mortgage on the old engine, or was changed, after he signed it, to a release, which was thereafter filed in the register of deeds office, and through which plaintiff wrongfully and fraudulently secured a release and cancellation of the first mortgage on the old engine; that plaintiff then took said old engine into its possession and appropriated it to its own use. Wherefore defendant prays that plaintiff’s complaint be dismissed, and that defendant be adjudged and decreed to have a first lien upon the engine described in plaintiff’s complaint for the sum of $800, and be awarded possession of said engine,. together with costs and damages. At the trial defendant did not attempt to sustain the allegations of fraud contained in the answer, and the cause was tried upon the theory that plaintiff had given defendant a first lien on the engine, by virtue of which defendant became entitled to possession.

At the trial defendant as a witness in his own behalf testified that he signed a release of the old mortgage, and further testified as follows: “Q. Did he [plaintiff’s agent] agree himself that he would see that you got this first mortgage on this engine? A. Yes, sir. Q. He took that responsibility 'himself, guaranteed that to you A. Yes, sir. * * * Q. Did the Buffalo Pitts Company give you a first mortgage on this engine? A. No, sir; they did not. Q. And that was the reason you have refused to turn this engine over at Bróadland, at the time this other man came out? A. Yes, sir. . Q. And you never received from them yet a first mortgage on this engine for $800 or any other sum? A.. No, sir. O. Have they -taken possession of this (old) engine and taken it away? A. Yes, sir; they have. Q. And what was this engine they took, what was the name of it A. Nichols and Shepard 25 horse engine. Q. That was the one that you had sold to- Woll-man Brs. ? A. Yes, sir. Q. And which you had a first mortgage on? A. Yes, sir.” From this testimony of the defendant himself it conclusively appears that no mortgage in fact was ever executed or attempted to be executed by the agent of plaintiff or by plaintiff.

The utmost effect which could be given this evidence would be to treat it as an agreement on the part of plaintiff’s agent to execute a mortgage to defendant. In the case of Walklin v. Horswill, 24 S. D. 191, 123 N. W. 668, this court held that, under the provisions of the statutes of -this state, a chattel mortgage could not be created by parol. Section 2091 of the Civil Code provides: “Every mortgagee of a chattel mortgage shall, at the time of its delivery, make and deliver to the mortgagor a full true and complete copy of such mortgage.” Section 2092 reads: “No register of deeds shall receive or file any chattel mortgage which does not contain a receipt over the signature of the mortgagor, to the effect that a copy -of such mortgage has been received by him, and every -chattel mortgage not containing such receipt shall be null and void.” Under -these sections of the Code, it is plainly evident that a chattel mortgage can neither be created by nor exist in parol. It is equally clear that a parol agreement to execute a chattel mortgage cannot itself create a mortgage lien.

[4] It is respondent’s contention, however-, that the alleged agreement for the execution of a mortgage to defendant, together with possession in him, are sufficient to create a lien by way of pledge of personal property. The evideñce, however, conclusively shows that plaintiff delivered the. engine to Wollman Bros, and not to defendant, and that the Wollmans, without the knowledge or consent of plaintiff, delivered possession of the engine to defendant, Deeg, and- that plaintiff had no knowledge of such transaction whatever until after default in the mortgage, and possession was sought for purposes of foreclosure. It is plain, therefore, even if it be assumed that plaintiff’s agent agreed to execute a first mortgage to Deeg, that possession of the property was never turned over to defendant by plaintiff under, or pursuant to, any such agreement, and no lien by way of pledge-was or could have been created by the unauthorized act of the Wollmans in delivering possession of the engine to the defendant, Deeg. The trial court therefore erred in denying plaintiff’s motion to direct a verdict at the close of all the evidence.

In the view we take of the case, it is unnecessary to discuss other assignments of error. The judgment and order of the trial court are reversed, and the cause remanded for further proceedings according to the law.