Varney v. Hawes

Barrows, J.

Plaintiff was the selling agent of Shawr, Hammond & Carney, of whom defendant desired to purchase goods upon credit. To obtain the credit it was arranged between plaintiff and defendant that defendant should give his note on four months for the amount of the goods, payable to S, II & C; that plaintiff should become surety on the note and defendant should give plaintiff a mortgage on the property demanded in this action, conditioned for the payment to the plaintiff in four months of a sum equal to the amount of the note. Defendant made partial payments to the plaintiff, as agent of the payees and had credit for them on his note.

The presiding justice to whom the case was submitted with right to except, ordered a conditional judgment for plaintiff for the balance due. The defendant contended that the plaintiff could not recover because the condition did not sufficiently describe the plaintiff’s liability on the note, and because the plaintiff had not paid the note to Shaw, Hammond & Carney.

We do not see that the defendant has any just or legal ground to complain of the decision.

We know of no rule of law which prohibits a man from mortgaging to an agent in order to procure credit from his principal, or which should prevent the agent to whom such mortgage was given from enforcing the same as the trustee of his principal.

The defendant conditioned his mortgage for the payment, to the agent from whom he desired to purchase the goods, of the amount of the purchase money at the expiration of the term of credit.

Had he performed that condition he would have had a perfect defense to the action. He has not done it, and the mortgage may be enforced in the name of the agent. A man may make a valid mortgage for the payment of money without particularly describing the writing which may be evidence of the debt designed to be secured, or without even giving any independent written evidence-of the debt.

But, he is not at liberty to substitute a different condition, by parol evidence, for that which is expressed in his deed. If the* defendant had designed this mortgage merely to indemnify the *444 plaintiff for becoming his surety to Shaw, Hammond & Carney, apt words should have been used to express such a condition. The fallacy of the defendant’s position consists in the assumption that the plaintiff proceeds upon the ground that the mortgage was made to indemnify him as surety for the defendant, which is opposed to the express language of the condition. Upon this assumption he based the objection which he made at nisi prius, to the plaintiff’s suit. The presiding judge overruled it, apparently finding that the mortgage was designed as security for the payment of the price of the goods sold, at the expiration of the term of credit, and that it was received and held by the plaintiff as agent and trustee of his principals. This is not inconsistent with the language of the condition. Even if the defendant’s assumption that the mortgage was designed to secure the plaintiff on account of his liability as the defendant’s surety could be admitted, the result would be the same; for the plaintiff would be entitled to recover upon production of his mortgage, unless the defendant, upon whom the burden of proof would then devolve, should “ show that the note had been paid or the plaintiff released, or that for some cause the plaintiff could not be damnified.” Davis v. Mills, 18 Pick. 394 .

In case of a mortgage for indemnity the mortgagee’s title to the property does not depend upon his having actually paid the debt, or being solely liable therefor. Barker v. Buel, 5 Cush. 519 .

In no view that can be taken of the ease can it be made to appear that the defendant is wronged in being held to the performance of the contract by means of which he procured the credit and the goods. There was an ample consideration to support the mortgage, and defendant has credit for all the payments he has made.

It is conceded by the able counsel for the defendant that the facts stated in the exceptions do not leave much ground for the defendant’s position, that he is entitled to have the value of the part of the vessel which was lost at sea, while in defendant’s possession and under his control but after it had been conveyed by an absolute bill of sale to the plaintiff, allowed as part payment of the debt. There was a sealed agreement (of the same date as the bill of sale) given by plaintiff to defendant, reciting that the bill *445 of sale was given to secure a debt of $1,476, and promising to re-convey upon payment of the debt in four months.

The presiding judge who beard the testimony negatived the defendant’s claim that there was at any time an absolute and complete sale or reception of the part of the vessel by the plaintiff as payment, and found that the parties intended a transaction which would in law amount to a mortgage, and thereupon rightly held that as the property remained in the possession of the mortgagor and no part of the proceeds of the vessel came to the hands of the mortgagee, he should not be held accountable for her value as a partial payment.

The judge’s finding is conclusive as to the facts, and it leaves no legal ground for the defendant to stand upon.

Exceptions overruled.

Appleton, C. J., Walton, Daneorth, Peters and Libbey, JJ., concurred.