Opinion
08-18-1887
HOWELL and others v. FRANCIS and another.
Carroll Robbins, for complainants. A. E. Johnston, for defendants.
On bill to foreclose chattel mortgage.
Carroll Robbins, for complainants. A. E. Johnston, for defendants.
BIRD, V. C. This bill is to foreclose a chattel mortgage. The dispute is with respect to three horses. The defendant Le Compt claims these horsesunder a chattel mortgage given to him. The mortgage of the complainant was given and bears date the twentieth day of May, 1886, and was recorded on the twenty-second of the same month. The mortgage of the defendant Le Compt was given and bears date the twentieth of November, 1886. The complainants insist, and one of them swears, that it was understood that the horses were to be included in their mortgage. This is questioned, if not fully denied, by the testimony of Alfred J. Francis, who says that he refused to give a mortgage on the horses because he had agreed to give them to the defendant Le Compt, to secure the payment of the purchase money or a portion of it, agreed to be paid for them. To that end Francis executed a chattel mortgage to Le Compt, simply coveting the horses, and offered to deliver it to Le Compt, who refused to accept it, because he did not regard it as sufficient security. While the situation remained thus, the mortgage was given to the complainants, in which a number of articles are enumerated, and to show the character of this enumeration I will name a few of them as given, viz.: "Two show cases; 2 sets counter scales; 7 candy jars; 1 copper toy-candy pan; 3 candy machines; 3 large toy molds; 3 sets of harness; 4 wagons." To which is added a paragraph in these words: "Also all bake-house tools and fixtures, and all and singular other the goods, chattels, and effects whatsoever, now in or upon the premises occupied by the within-named mortgagors * * * and all the fixtures, other goods, chattels, and effects whatsoever, in our store * * * or which may during the continuance of the within security be brought into or upon said before-mentioned premises."
The complainants insist that this last sweeping clause is sufficiently comprehensive to include the horses. And sol should conclude, without hesitation, were it not that, what seems to me to be a fact, at the very time of the execution of the mortgage, the parties were disputing between themselves whether the horses should be included or not. And therefore, under the testimony in the case, and the broad language used in the schedule, as above quoted, I cannot conclude that all equity of redemption in said horses would have passed to the complainants, in case Le Compt had accepted the mortgage which Francis Bros, executed and tendered him, covering the horses. I think they intended to convey to the complainants everything else which Le Compt did not take. But Le Compt not only did not take these three horses as security, but he afterwards consented that they might be exchanged, and two of them were exchanged for two other horses long before Le Compt took the mortgage under which he now claims. He had previously taken the note of Francis Bros., with their father as indorser, forthe claim which he still holds. Now, Le Compt having consented to the exchange, and the language of the mortgage of complainants, including all property which may be brought into or upon the premises, being so comprehensive, I think it comprehends the two horses which came on the premises by way of exchange, beyond all doubt. But, as the testimony stands, there is not enough in favor of complainants to justify me in saying that the parties ever did agree that the horses should in the first instance be included. On this point their minds did not meet.
The complainants are entitled to a decree according to these views.