Opinion
04-30-1888
HULSIZER'S ADM'RS v. OPDYKE et al.
W. M. Davis, for complainants. J. M. Roseberry and Mr. Frost, for defendants.
Final hearing of a bill to foreclose a chattel mortgage brought by Hulsizer's administrators against Opdyke and others. The mortgage contained a covenant on the part of the mortgagor not to trade or exchange any of the chattels mortgaged without the written consent of the mortgagee; but further covenanted that in case he did the chattels so obtained should be held and taken in place of those disposed of.
W. M. Davis, for complainants. J. M. Roseberry and Mr. Frost, for defendants.
BIRD, V. C. When this case was presented, on motion to modify the injunction allowed at the time of the appointment of a receiver, I expressed my views as to the intentions of the parties in the chattel mortgage named in the bill of complaint in the use of the words "trade and exchange." In my judgment they were words of limitation, and were not intended to include all of the after-acquired property. In my judgment, also, they were not simply limited to the exchange or trade of one article for another article of the same kind, or of a different kind, but most reasonably were intended to include articles which were purchased with the proceeds of other articles. In other words, whenever O. put one article or thing in the place of another named in the mortgage, it became subject to the mortgage. The cause is now before me on final hearing, and questions, which before were only hinted at in the arguments are now clearly presented by the proofs in the cause. A number of the animals mentioned in the chattel mortgage have died since its execution. Not a few of the articles named therein have been consumed or worn out by the mortgagor; and only a very few, if more than one article, can be said to have been the subject of trade or exchange according to my views, which have not been heretofore disposed of by the mortgagor, either by consumption or use in some other way, or by sale, and the consideration therefor kept by him or applied towards the payment of the mortgage of the complainants. It seems quite plain to my mind that the defendant, the mortgagor, cannot be called upon to account for the animals which died, by substituting other like animals therefor which he had at the time, or which he may have acquired afterwards. This, I think I made plain in the conclusions already referred to. And I am obliged to conclude that the same reasoning applies to all the articles used or consumed by the mortgagor, including grain, calves, cows, or bulls, killed for beeves. By no method of reasoning can these be brought within the phrase "trade or exchange." These words clearly indicate the giving of one article and the receiving of another, whether the article be money, or what is ordinarily understood to be a chattel. At all events, the language of the mortgage does not seem to me to be broad enough to carry the judgment of the court beyond what I have intimated in saying that whenan article is sold, and the money received therefor is used for the purchase of another, that the other comes within the purview of the chattel mortgage And this principle, it seems to me, applies to the threshing machine and horse power, and brings that within the contention of the complainant, and subjects it to the lien of the mortgage.
The defendants insisted that the chattel mortgage upon which the complainant relies could not be offered in evidence because the amount claimed to be due thereon at the time of filing the same was not properly sworn to, it appearing by the affidavit annexed thereto that the consideration therefor was a promissory note, without expressly showing what the consideration of the note was, whether really anything or not. Independently of the merits of the case the objection is perhaps well founded. When, however, the relations of the parties are looked into, and it is seen that the defendants, other than the mortgagor, are the sons of the mortgagor, and claim a number of articles which the complainant also claims because the said articles are enumerated in their chattel mortgage; and when it is understood, as it will be by those who read the testimony in the cause, that these sons were familiar with these business transactions of their father, it will not be doubted but that they had knowledge of the execution of this mortgage by the father, and of all the circumstances attending it; and that therefore it is not enough for them to rely upon any imperfection in the record. I will so advise.