Chafey v. Mathews

McGrath, C. J.

Plaintiff was on the 23d day of Ja-nn-' ary, 1891, and is now, the cashier of the First National Bank at Ithaca. On that date he took from one Moore, who was a customer of the bank, a chattel mortgage in the sum of §4,000, covering Moore’s stock of merchandise, and all additions and accessions to said stock, to secure the payment of Moore’s obligations, both present and future, to the bank. The bank continued to discount Moore’s individual paper, as well as that of his customers, and advance moneys upon drafts drawn by Moore upon his customers, until August, 1893, when Moore made an assignment for the benefit of his creditors. The assignee failing to qualify, defendant was appointed receiver, and took possession. Plaintiff replevied the stock of merchandise under his mortgage.

It is insisted by defendant:

1. That the mortgage runs to plaintiff individually, and not to the bank.

Its purpose, however, was fully understood, not - only by the mortgagor, but by the creditors. All of the business *106 was done through plaintiff, and no one appears to have-been prejudiced by the fact that the mortgage did not run directly to the ban^:.

2. That the affidavits of renewal filed January 13, 1892, and January 23, 1893, did not correctly set forth the facts-as they existed at that time.

The renewals allege that “ there is due and remaining* unpaid on said mortgage the sum of $4,000,” and ftthat-the interest of said M. Foster Chafey in the chattels therein described remains unchanged.” It appears upon the face of the mortgage that it was to be a continual indemnity. The mortgagee was not required to state the actual amount of the matured indebtedness upon those dates, so long as-the obligations, both matured and unmatured, exceeded that sum.

3. That plaintiff made representations to certain creditors which -were misleading, and operated as a fraud upon them.

It is-not claimed that the mortgagee at any time misrepresented the state of the account between the bank and the mortgagor. What is charged is that, upon inquiry made by creditors, plaintiff represented that Moore was doing a good business, and would be able to meet his obligations. These were opinions, merely, and there was-nothing to show that they were not given in entire good faith. Indeed, at the time of the failure, Moore was indebted to the bank in the sum of $14,000, — a sum largely in excess of the security held by the bank.

4. That certain goods seized by plaintiff under the writ-had been delivered to Moore by the McFarlan Carriage Company, under written contracts, by the terms of which the title to the goods was to remain in the carriage company, and it is urged that plaintiff had no right to take these goods under his writ.

The right to possession of these goods under the con *107 tract in question was at the date of the assignment in Moore. He cannot be said to have had no interest in the-goods, and whatever interest he had passed under the-mortgage. Whatever payments he may have made upon them inured to the benefit of the mortgagee. The receiver took through Moore, and subject to the mortgage. He cannot be allowed, in this proceeding, to represent the-carriage company. The claim of that company is adverse to that of the receiver and the creditors. The carriage-company, when it asserts 'this claim, if it ever does, will do so, not as a creditor, but as having the title to the-goods in question.

It further appears that the carriage company, on the-14th day of October, 1893, filed its claim as a creditor for the balance of its account, without reference to any claim of ownership. It is not necessary to determine whether the filing of said claim was a waiver of its right to claim title. It is sufficient that Moore mortgaged his interest in these goods — including, as an incident, the right of possession — to plaintiff.

The judgment is affirmed.

The other Justices concurred.