PACIFIC NAT AGRICULTURAL CREDIT CORPORATION v. WILBUR (1934)

It further appearing to the court, upon a reconsideration of the record in this cause, that the findings entered by the trial court, not being supported by the testimony, should be practically reconstructed.

It is ordered that the paragraph beginning with the words, “It follows from what we have said that Finding No. 5 of the trial court should be, and the same is hereby corrected to read as follows,” appearing on page 14 of the typewritten copy of the opinion of this court, down to and including the following, “That Finding No. 12 be corrected by eliminating therefrom the following words: That thereafter, the said Wilbur paid on account of said note the sum of $4,500.00,” be stricken from the opinion of this court filed in this action on the 27th day of June, 1934, and that there be substituted therefor the following: After receipt of the $4,000 just mentioned, the record shows that there still remains due to the appellant some $25,000; that for the payment of this indebtedness the record shows that the plaintiff holds a chattel mortgage on some furniture of the probable value of $500. While the law is well established that where there is a renewal of a mortgage, the person taking the renewal mortgage must first resort to any property mentioned therein not included in the original mortgage in order to protect the rights of intervening parties, it clearly appears that if a further credit be given on the obligation of the defendant Wilbur to the plaintiff of the value of the chattel mortgage upon the furniture, there still remains due over $24,000 from Wilbur to the plaintiff, and the respondent is not entitled to any credit by reason of the chattel mortgage covering the furniture. The same is true as to the $4,000 received for the sale of 500 head of sheep which were included only in the September mortgage to secure the repayment of moneys advanced for the sheep purchased and brought over from the state of Oregon.

It follows from what we have said that the findings of the court should read as follows:

Finding No. 5.

It is true that said note and mortgage of September 13, 1930, was made as a renewal of the first described chattel mortgage attached to said second amended complaint and marked Exhibit A.

Finding No. 6.

It is true that said mortgage of September 13, 1930, was never intended as a satisfaction or discharge of said first described chattel mortgage.

Finding No. 7.

It is true that said mortgage of September 13, 1930, described the same sheep described in said mortgage marked Exhibit A, and additional sheep, and it did include the description of the 1,439 head of sheep referred to in said complaint.

Finding No. 8.

It is true that on or about the 25th day of July, 1930, the defendant Hazel Hoke Smith took into her possession the said 1,439 head of sheep described in the complaint, and that the said defendant Hazel Hoke Smith converted the same to her own uses and purposes.

Finding No. 9.

That at the time of the taking of said sheep by the defendant Hazel Hoke Smith the plaintiff was entitled to the possession of said sheep under the terms of its chattel mortgage hereinbefore described.

Finding No. 10.

That on the 25th day of July, 1930, when the defendant Hazel Hoke Smith took possession of said sheep, there was due on account of the promissory note described and included in the chattel mortgage executed March 27, 1930, and attached to said second amended complaint, and marked Exhibit A, the sum of $9,414.44.

Finding No. 11.

That on the 11th day of September, 1930, the sum of $1,771.50 was paid by said Wilbur on account of said note.

Finding No. 12.

That the allegations of paragraph X of plaintiff's second amended complaint are true.

Finding No. 13.

That by reason of the conversion of said sheep by the said defendant Hazel Hoke Smith, plaintiff has been damaged in the sum of $7,642.94.

Finding No. 14.

That the debt secured to be paid by the mortgage of March 19, 1930, attached to said complaint marked Exhibit A, has not been paid, but was carried into and became a part of the note dated September 13, 1930.

Finding No. 15.

That the assignments made by the plaintiff to the Federal Intermediate Credit Bank of Berkeley, of the notes and mortgages herein referred to, were made only for the purposes of collateral security to secure the payment of moneys borrowed by the plaintiff from said bank.

Finding No. 16.

That the plaintiff is the real party in interest, and was, at the time of the commencement of this action, the owner of said mortgages and the holder of the mortgage dated September 13, 1930, and the Federal Intermediate Credit Bank of Berkeley was a pledgee only.

The petition for a rehearing is denied.

PER CURIAM.