Abbildungen der Seite
PDF
EPUB
[ocr errors][ocr errors][ocr errors]

tiff;

follows: 'If said mortgagor shall fail to pay any installment as it becomes due, then all said installments unpaid shall at once become due and payable, and said mortgagee or its representatives shall have the right, and is hereby authorized and empowered, to take possession of said goods and chattels, with or without process of law, said mortgagor hereby waiving any claim or action for trespass or damage on account of said taking.'

"It is contended by the defendant that under this provision in the mortgage it took the machine, and that it was authorized to take the same, and this fact was pleaded as a defense to the plaintiff's cause of action.

“The trial court sustained a demurrer to so much of the defendant's answer as sought to justify the taking by virtue of the above provision in the mortgage; but submitted to the jury the issue as to whether or not the machine was taken from the possession of the plaintiff by and with the consent of the plain

and if such was the case, to find in favor of the defendant. 177 "The defendant upon the trial of the case asked a charge, which was by the court refused, presenting to the jury the issue as pleaded, that the defendant had authority to take possession of the machine by virtue of the agreement contained in the mortgage, as above set out.

“There is evidence in the record which shows that the machine was taken from the building occupied by the plaintiff as a tailor-shop without his consent and against the express wishes of the party in whose possession it was at the time it was taken ; that the machine was then in use by the plaintiff in his busijess as a tailor. And there is also evidence which tends to show that the defendant in taking the machine used no force or violence, and no breach of the peace was committed at that time. It also appears as a fact that at the time the machine was taken there was a balance due the defendant as a part of the purchase price of the machine. It is also pleaded, and there is evidence to sustain the averments, that the machine was taken by the defendant for the purpose of enforcing the provision of its mortgage and lien on the machine.

“Verdict and judgment in the trial court were in favor of the plaintiff on all of the items of damages claimed, with a credit in favor of the defendant for the balance due upon the machine, and for the balance remaining, judgment was rendered in plaintiff's favor,

[ocr errors][ocr errors][merged small]

"Under the above statement, the court of civil appeals for the third supreme judicial district of Texas certifies to the supreme court of Texas the following question:

“Although the taking of the machine at the time was without the consent of the plaintiff, did the stipulation contained in the mortgage, as above quoted, authorize the defendant to enter the place of business of the plaintiff and take actual possession of the machine, without then and there first obtaining the permission and consent of the plaintiff? In other words, did the consent given in the provision of the mortgage quoted authorize the taking, where it is, as here, shown by the facts that no force or violence or breach of the peace was committed in taking the machine? And if such taking was justifiable under the terms of the mortgage as quoted, would such fact be a defense, either in whole or in part, to the plaintiff's cause of action ?”

We are of the opinion that the question should be answered in the affirmative. Clearly, unless the stipulation in the mortgage which purported to give the appellant the right to take possession of the sewing machine upon default of payment be held of no effect, its agent committed no wrong by a peaceable seizure of the property for the purpose of paying the debt. The stipulation is valid, unless it is contrary to public policy. According to the well-known dictum of an English judge, public policy "is a very unruly horse, and when you once get astride it, you never know where it will carry you”: Richardson v. Mellish, 2 Bing. 229. This striking illustration admonishes us that the terms "public policy” are vague in meaning and dangerous of application, 178 and that unless we exercise due discrimination, we are likely to fall into error when we come to apply them to the construction of a contract with a view to determine the validity of its provisions. Freedom of contract is the rule, subject to the exception, that a party cannot bind himself to do that which is by law prohibited, or declared to be illegal, or which is manifestly detrimental to public morals or the public good. The question then arises, What consequence injurious to the public is a stipulation of the character of that under consideration calculated to produce? To this it may be vaguely answered, that it tends to a breach of the peace. But the reply is, so do many other contracts the validity of which are never called in question. Certainly no breach of the peace is likely to occur provided the mortgagor in such case does what he has contracted to do and what it is his duty to do. namely, in case of default to surrender the property upon de

[ocr errors][ocr errors][ocr errors]

anand of the mortgagee. On the other hand should he make forcible resistance, this does not justify the mortgagor in using force to overcome his resistance. The law hardly proceeds upon the assumption that either party will violate bis agreement, and that therefore a breach of the peace may arise.

The proposition that such a stipulation is valid, and that the mortgagee may take peaceable possession of the property without the consent and even over the protest of the mortgagor, is sustained by the great weight of authority. The following cases are in point: Street v. Sinclair, 71 Ala. 110; Burns 8. Campbell, 71 Ala. 271; Walsh v. Taylor, 39 Md. 591; North v. Williams, 120 Pa. St. 109, 6 Am. St. Rep. 695, 13 Atl. 723; White Sewing Machine Co. v. Connor, 23 Ky. Law Rep. 1125, 64 S. W. 841; Heath v. Randall, 4 Cush. 195; Satterwhite v. Kennedy, 3 Strob. (S. C.) 457; Nichols v. Webster, 1 Chand. (Wis.) 203. Such is the rule recognized by the text-writers: Jones on Chattel Mortgages, sec. 434; 1 Cobbey on Chattel Mortgages. sec. 510; Pingrey on Chattel Mortgages, sec. 989; Boone on Mortgages, sec. 276.

The authorities relied upon in support of the proposition that the stipulation in question did not justify the taking of the property against the consent of the mortgagor, are from our own courts.

The first is Loftus v. Maxey, 73 Ter. 242, 11 S. W. 272. As to the evidence adduced upon the trial, the (ase is meagerly reported. The petition charged that in conJection with the taking the defendants threatened the plaintiff with violence and committed an assault upon her. How these allegations were sustained by the proof the report does not disclose. The court charged the jury that if the property was taken without the consent of the plaintiff, and “if the manner of defendants, or either of them, in the taking was by threats, or in an insolent, overbearing and insulting manner done in such a way as would naturally outrage the feelings of plaintiff," then they should find for plaintiff. It was held that this charge was correct. In the opinion the court say: "We think the charge of the court to the effect that if the instrument alleged to have been executed by Salie Maxey was genuine, as asserted 179 by defendants, it furnished no justification or defense for the defendants, is correct. Without such an instrument they had the right to remove the property peaceably and with the consent of the parties having it in lawful possession, while with it they had no right to make such removal forcibly or

against the will of plaintiffs.” We think in so far as the opinion asserts that a peaceable taking against the will of the mortgagor was wrongful, it is clearly a dictum. The petition alleged the taking of the property, but did not state its value; and we understand the suit was to recover damages for an assault and other insulting conduct. Judging by the report of the case the question of the right to take the property peaceably without the consent of the plaintiff was not discussed in the briefs of counsel upon either side; and, as we think, was a point not necessarily involved in the determination of the suit.

In Gillette v. Moody, 54 S. W. 35, the court of civil appeals for the fourth district held, that under a similar provision in a chattel mortgage it was unlawful to enter a house by force and threats for the purpose of taking and carrying away the mortgaged property. That is not the question certified in this case.

The case of Culver v. State, 42 Tex. Cr. Rep. 645, 62 S. W.922, was a conviction for an aggravated assault in which the court of criminal appeals held, that the fact that the assault was made in an attempt by the defendant to take mortgaged property under a like stipulation in a chattel mortgage was not a justification of the act. What is said in the opinion, to the effect that the defendant had no right to take the property without the consent of the assaulted party, was not involved in the decision of the case. Clearly, the right to take the property did not justify the assault.

So far we have not adverted to the case Harling v. Creech, 88 Tex. 300, 31 S. W. 357. In that case in answering a certified question, this court, after construing the instrument in controversy to be a chattel mortgage, said: “The instruments being chattel mortgages, the vendor had the rights of a mortgagee under a chattel mortgage containing the stipulations of right to take possession, which would be to take possession of the property if he deemed himself insecure, or the debt not being paid, and to hold or dispose of the property in the character of mortgagee, and not as owner.” It is claimed by counsel for appellee that this was a dictum. Without pausing to inquire whether the remark was called for in a decision of the question there certified, we deem it sufficient to say, thai if a dictum, it is in our opinion a correct announcement of the law.

[ocr errors]

Conditions in Chattel Mortgages authorizing the mortgagee to take possession, sell, or declare a forfeiture at any time he may deem bimself insecure, are discussed in Nash v. Larson, 80 Minn. 458, 81 Am. St. Rep. 272, 83 N. W. 451; Newlean v. Olson, 22 Neb. 717, 3 Am. St. Rep. 286, 36 N. W. 155; Francisco v. Ryan, 54 Ohio St. 307, 5i Am. St. Rep. 711, 43 N. E. 1045. A mortgagee to whom authority is given by the mortgage to take possession of the property and sell it for the payment of his debt cannot be sued in trover by the mortgagor for so doing: Clark v. Whitaker, 18 Conn. 543, 46 Am. Dec. 337.

[merged small][ocr errors][ocr errors]

GARRISON v, COOKE.

[96 Tex, 228, 72 S. W. 54.] CONTRACTS.--Time is of the Essence of a Contract when one party agrees to pay money to the other in consideration of the doing of an act by such other within the time specified. (p. 908.).

CONTRACTS—Time, When of the Essence of.--If one party agrees to pay to the other a sum specified in consideration that such other will construct, equip, and operate a line of railroad and run trains between designated points on or before a day named, time is of the essence of the contract, and there can be no recovery therenn if the acts required do not take place at or before such date. (p909.)

[merged small][ocr errors][ocr errors]

Blount & Garrison, for the appellant.

H. N. Nelson, W. R. Anderson, J. H. Long, and J. G. Woolworth and Spencer & Scott, for the appellee.

230 GAINES, C. J. The following questions have beon certified for our determination :

“In this cause, now pending before this court on motion for rehearing, we are advised that a number of other claims of a like nature growing out of the same transaction are dependent upon

the result of this case, and for that reason, and because this court is not unanimous in the conclusion already reachel to affirm the judgment and are in doubt as to the correctness of our judgment, we certify for your decision the questions hereafter set out.

“The facts as disclosed by the record are as follows:

“Some time in the spring of 1898, T. S. Garrison, the appellant, induced J. W. Cooke and other citizens of Carthage, Texas, to execute and deliver to him the following instruments with the amount for which each was to be bound set opposite the respective signatures:

« ZurückWeiter »