Bendel v. Crystal Ice Co.

Works, J. The Crystal Ice Company executed a chattel mortgage to one Wain wright to secure the payment of a promissory note, and a subsequent mortgage, on the same property, for a like purpose, to the respondent. The mortgage to Wainwright contained the following clause: “And in case "default shall be made in the payment of said note, or of the interest thereon, when [200]due, or any part thereof, according to its terms, or in case default be made in the performance of any of the covenants thereof, then the said mortgagee is hereby empowered to proceed to sell the above mortgaged property, either by proceedings of foreclosure, as provided by the Code of Civil Procedure, or by a sale of the mortgaged property, and proceedings had and taken as in case of pledges, without any previous demand for the performance or notice of time and place of sale, the said mortgagor having waived demand and notice, and at any such sale the mortgagee may become the purchaser, if he so desire, either directly or indirectly.”

Default was made in the payment of the note, and Wainwright, acting under the authority above quoted, sold the property, and after several transfers, the same was purchased by the appellant Pauson.

The respondent brought this action against the ice company and Pauson to foreclose his junior mortgage.

The ice company made default. There was a trial as to the defendant Pauson, and judgment rendered foreclosing the mortgage as against him. He moved for a new trial, which was denied, and he appeals.

The only question worthy of consideration presented on this appeal is as to the validity of the sale by Wainwright under his mortgage.

The code provides: “ The sale by a pledgee of property pledged must be made by public auction, in the manner and upon notice to the public usual at the place of sale in respect to auction sales of similar property, and must be for the highest obtainable price.” (Civ. Code, sec. 3005.)

There are other sections requiring that the pledgee demand performance from the debtor, if he can be found, and that he give such pledgor actual notice of the time and place at which the property pledged will be sold, at such reasonable time before the sale as will enable the pledgor to. attend. (Civ.. Code, secs., 3.00.1, 3.002.) But [201]