Opinion
No. 33432.
January 16, 1939.
1. BILLS AND NOTES.
The fact that declaration stated amount sought to be recovered was $1,200 did not render judgment for $1,306 void, where note sued on was attached to and made part of declaration, and it was apparent from pleading that the amount sued for was $1,306.
2. BILLS AND NOTES.
Under payee's undisputed testimony that amount of note was $800 and not $500 as alleged by the maker in his pleading, there was no issue for jury regarding amount of note.
3. CHATTEL MORTGAGES.
Where note was secured by trust deed on horse and wagon, fact that mortgagee foreclosed trust deed as to horse alone and declined to foreclose it as to wagon did not preclude mortgagee from maintaining suit for deficiency.
4. CHATTEL MORTGAGES.
A mortgagee may foreclose in whole or in part and sue for any deficiency, or he may elect to decline to foreclose to any extent and bring suit for mortgage indebtedness.
APPEAL from circuit court of Jasper county; HON. EDGAR M. LANE, Judge.
J.M. Travis, of Meridian, for appellant.
A chattel mortgagee may waive his mortgage lien or be estopped to enforce it, by conduct inconsistent with its existence and such waiver or estoppel need not, of course, be shown by written evidence.
11 C.J. 674.
The appellant contends that after the appellee began foreclosure it was his duty to follow up the foreclosure by selling the property secured by the deed of trust and then to sue for a deficiency. And it appears that after the appellee actually instituted a foreclosure proceeding prior to the filing of this suit, that he would be bound under the law to follow the foreclosure with a suit for deficiency, thus making the deed of trust the real foundation of his law suit; and if the deed of trust was the real foundation of his law suit and was so connected that the appellant could not make proper defense to the same, that the filing of a copy of the deed of trust as well as the note with declaration were necessary for good pleading; and that it was also necessary to properly aver a legal and valid sale under the deed of trust.
11 C.J. 733.
Ordinarily, a party's choice of one of several remedies estops him from later resorting to another remedy.
Warriner v. Fant, 74 So. 822, 20 C.J. 5.
The rule is that where a party has two or more methods of redress based upon inconsistent theories either on the form or forum of procedure, or the parties to the several proceedings, then he is put to his election and his choice of either is a bar to his resorting to the other.
Ideal Concrete Mach. Co. v. New York National Park Bank, 159 App. Div. 344, 145 N.Y.S. 119; Field v. Great Western El. Co., 6 N.D. 424, 71 N.W. 135, 66 Am. St. Rep. 611.
The appellee's declaration thoroughly indicates upon its face that the appellee had elected to foreclose on his mortgage and to sue for a deficiency; and that as appellee elected to pursue this course, then he was bound under the law to foreclose and make sale under the terms of deed of trust as required by law and then sue for any deficiency unpaid.
11 C.J. 733, 674.
The plaintiff has failed to show by a preponderance of the evidence in this case that he is entitled to the relief sued for in this case.
The appellant contends that after the directed verdict and peremptory instruction was given to appellee, that the jury in the case retired to make up their verdict. And that the jury brought in their verdict in the sum of $1086 being principal and interest together with $220 attorney's fee, making a total of $1,306. It will be noticed that in the declaration, the declaration stipulates that there is now outstanding and unpaid all of said note with interest thereon as provided and a reasonable attorney's fee, less a credit of $40, aggregating the amount of $1200. And concluded with, wherefore the plaintiff brings this his action and demands judgment of and from the defendant in the amount of $1200.
We submit that as the appellee fixed the amount in which he was to recover, that he necessarily set up in his tabulation of the amount due what was the amount of the reasonable attorney's fee.
Travis Son v. F.A. Hulett Son, 141 So. 349.
H.L. Finch, of Laurel, for appellee.
We know of no ruling of law that requires or required appellee to foreclose on all or any part of property conveyed in a deed of trust as a precedent to bringing suit on a note secured by the deed of trust.
With reference to the sufficiency of the plaintiff's testimony, the plaintiff, the only witness offered on the issue, testified that the defendant signed the note in question; that he, the plaintiff, was at the time of its execution and delivery the bookkeeper for E. Martin, Sr., the payee; that he, plaintiff, prepared the note sued on, together with a deed of trust in like amount, in the presence of the defendant; that he gave them, the note and deed of trust, to the defendant who carried them to a notary public for the purpose of signing them and acknowledging the deed of trust, and that presently he, the defendant, returned, bringing with him the note signed (by himself) and the deed of trust executed, and personally delivered them to the witness for the payee.
In answer to the excessive amount found by the jury we submit that the note showing the principal amount due, the rate of interest it bore, the recovery of a reasonable attorney's fee therein provided for, all of which were duly declared for, were a part and parcel of the declaration, and the mere fact that the declaration stated that these several amounts due aggregated the sum of $1200, which amount was merely an estimation, would not, and should not, preclude plaintiff from recovering the amount actually due under the instrument.
No complaint is made that the judgment did not reflect the true amount due, or that the attorney's fee was unreasonable, or that the interest was not properly figured by the jury, but only that the amount found by the jury was in excess of the aggregate amount estimated by counsel for the plaintiff to be due at the time of filing the declaration.
We submit that the finding of the jury, under the instruction of the court, as to the amount due on the entire obligation, was right, just and proper, and that the judgment as entered should not be disturbed for that reason.
Appellee sued appellant in the circuit court of Jasper county on a promissory note for $800, which provided for interest and attorney's fee in case it was collected through the instrumentality of an attorney. There was a judgment for appellee in the sum of $1306, from which judgment appellant prosecutes this appeal.
In the declaration the amount sought to be recovered was laid at $1200, while, as stated, the recovery was for $1306. For that reason, appellant claims the judgment is void. The true amount due on the note at the time of the judgment was $1306, the sum for which judgment was rendered. That fact is not controverted. A copy of the note sued on was attached to and made a part of the declaration. Appellant could not have been misled as to the amount sued for. It was apparent at once from the pleading that $1200 was not the amount sued for, but the amount of the recovery, $1306.
Appellant plead that the note sued on for $800 was not his act and deed; that it should have been for $500 instead. Appellee testified, and his evidence was undisputed, that he drew up the note and deed of trust to secure the same, and that the amount was $800, not $500; that he turned them over to appellant to be executed by him before a notary public; that he took them for that purpose and in due time returned and delivered them to appellee apparently properly executed. That was all the testimony on the question. There was no issue left for the jury.
The note was secured by a deed of trust on a horse and wagon. Appellee foreclosed the deed of trust as to the horse alone, which brought $40, and that amount was credited on the note. He declined to foreclose it as to the wagon for reasons undisclosed. Appellant contends suit could not be brought on the note until remedy by foreclosure had been exhausted; that there could be no foreclosure in part and suit for the deficiency; that the two remedies could not be resorted to in that manner — that they are inconsistent and resort to one excludes the other. There is no merit in that contention. A mortgagee may foreclose in whole or in part and sue for any deficiency, or he may elect to decline to foreclose to any extent and bring suit for the mortgage indebtedness. Neither course waives the other.
Affirmed.