Yost v. Commercial Bank

Foote, C. This appeal is taken from a judgment in favor of the defendant, and comes here upon the judgment roll alone.

From the pleadings and findings, it appears that T. H. Owens and J. M. Edington for several years had been partners in the business of cultivating and raising barley on the San Joaquin ranch, in the county of Orange; that the land on which a certain crop of barley was [495]raised, involved in this action, was leased by Owens alone, and that Edington was a silent partner; that Owens obtained a loan of two thousand dollars from the defendant, a banking corporation, and to secure his note therefor, executed a chattel mortgage on the crop then growing on the leased premises. This money was used in raising the crop. Afterwards, on the 12th of September, 1889, both partners made an assignment in writing of all their right, title, and interest in the crop heretofore mentioned to one F. K. Ludlow, which instrument was duly certified and acknowledged, so as to entitle it to be recorded in the proper office, where it was actually recorded on the next day. This assignment stated that it was subject to the chattel mortgage to the defendant. Owens never paid the money due on the note secured by the chattel mortgage, and on the 21st of September, 1889, Ludlow, the assignee, gave his assent whereby the defendant received possession of the growing crop, thrashed, harvested, and sold it, and applied the proceeds as directed in the chattel mortgage.

After this Owens and Edington became voluntary insolvents under the statutes of this state, and their assignee brought this action for the recovery of the possession of the crop of barley in sacks, and for damages for its detention.

The defendant corporation answered, setting up three defenses': the first, a general denial; the second, that the chattel mortgage had been executed by Owens for money loaned him; that he alone was known to the bank as the lessee of the land on which the crop was grown, and that the borrowed money was used to make the crop, and that the debt remained unpaid, and that the crop was sold under the mortgage in accordance with its provisions, and the proceeds applied by the defendant to the payment of the debt. The third defense set out facts as to the assignment to Ludlow, etc., which we have heretofore stated, and which, in our judgment, amounted to an assertion of a ratification by the other partner, Edington, prior to the insolvency of [496]