Equitable Plan Co. v. Dix Box Co.

[706]

VALLÉE, J.

Appeal by defendant Dix Box Company from an order denying its motion to discharge a writ of attachment.

The action is for money. The complaint is in five counts. The first count is on a check dated June 26, 1957, made by defendant payable to plaintiff for $1,187.80. The second count is on a check dated June 27, 1957, made by defendant payable to plaintiff in the amount of $2,318. The third count is on a check dated June 28, 1957, made by defendant payable to plaintiff in the amount of $255.28. Defendant stopped payment on each check. The fourth and fifth counts are for money had and received totaling $20,227.94. The prayer is for $23,959.02.

With the complaint, plaintiff filed an affidavit for a writ of attachment which stated “that the payment of the same has not been secured by any mortgage, deed of trust, or lien upon real estate or personal property, or any pledge of personal property.” The writ issued and about $888.81 was attached.

Defendant filed a motion to discharge the attachment. In support thereof it filed an affidavit of its president which stated: he believes and is advised by his counsel that plaintiff has no reasonable ground for alleging the indebtedness; the debt sued on arose out of a transaction between plaintiff and defendant; defendant executed a chattel mortgage dated January 24, 1957, to plaintiff; the mortgage is “a security” for all debts arising out of the transaction and is a security for all debts sued on in the action; he is advised and believes plaintiff should have availed itself of foreclosure proceedings on the mortgage before it was entitled to a writ of attachment. In a supplemental affidavit he attached a copy of the chattel mortgage which is dated January 24, 1957, mortgages certain personal property as security for the payment of a promissory note of the same date for $58,816.82 with interest at 10 per cent, payable in installments of $1,000 or more on the 24th of each month beginning February 24, 1957. The mortgage contains this provision:

“This mortgage also secures: (a) any and all renewals of said promissory note; (b) the repayment of all sums and amounts that may be necessarily advanced or expended by Mortgagee for the maintenance or preservation of the mortgaged property, or any part thereof; (c) to the maximum extent and amount of Sixty Thousand and No/100Dollars ($60,000.00), any and all other sums that may here