Dohrman v. Durston

DORAN, J. Plaintiff, as the assignee of one L. S. Hutchinson, hereinafter referred to as “mortgagor,” instituted the present action to, recover the value of certain personal property described as “1 Caterpillar, Model D8” etc., and “1 Woolridge Scraper” etc., alleged to have been converted by the defendants Durston and Spicer, the latter claiming under a chattel mortgage from Hutchinson. It appears that prior to October 29, 1945, Hutchinson had borrowed $15,000 at the [237]Bank of America which loan was guaranteed by Spicer. On December 21, 1945, by way of a settlement between Hutchinson and Spicer, the former executed a chattel mortgage to Spicer covering the property above mentioned for the purpose of securing a promissory note of $4,500 payable at the rate of $500 per month. Certain other property was transferred to Spicer by bill of sale, apparently as a part of the same settlement, which property the trial court found had not been converted by the defendants.

The chattel mortgage from Hutchinson to Spicer, executed in Nevada, provided that upon default, “the said mortgagee may, without foreclosure and without legal proceedings and without any previous demands herefor, and with the aid or assistance of any person or persons enter upon the premises of the mortgagor, or such place as any of the property . . . may be found and take and carry away the mortgaged property, or any part thereof, and with or without notice to the mortgagor, at either public or private sale, sell and dispose of the same . . . for the best price he can obtain, ’ ’ paying to the mortgagor any overplus remaining after satisfaction of the mortgage debt and expenses.

Plaintiff’s complaint alleges that on October 15, 1946, the defendants Durston and Spicer entered upon the mortgagor Hutchinson’s property in Lander County, Nevada, and without the mortgagor’s consent, removed the mortgaged equipment to Los Angeles County, California. Defendants’ answer alleges that after Hutchinson had failed to make any payments on the chattel mortgage, Spicer, as mortgagee, seized the property, "acting under the terms and conditions of said chattel mortgage and in accordance with the powers therein vested in him”; that thereafter, at Austin, Nevada, Spicer sold the property to the defendant Durston for $9,000, and that Durston then removed it to Los Angeles. By way of counterclaim, defendants set up certain expense items connected with a retaking of the property, namely, $284.46, traveling expenses; $350 paid as attorney fees in Reno, Nevada, and Los Angeles; $100 attorney fees for services rendered to Hutchinson and guaranteed by Spicer; and rental of a power control unit at $900. The $9,000 received by Spicer from the sale of the property to Wes Durston was reported to the mortgagor and accounted for by deducting therefrom the above expenses together with the amount of principal and interest due on the promissory note to Spicer, and the amount of a dishonored check for $1,500 given by