#### Hawkins Furniture Co., et al. v. Morris,

(Decided May 19, 1911.)

Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).

■ 1. Chattel Mortgage — Mortgagee’s Highit -to Sell — A -clause in a chattel mortgage, which gives the mortgagee the right to enter *739the premises and take possession oí the mortgaged property, and sell *¡ft*upon default to pay the debt, is valid and enforcihle; hut, if in taking possession of the property over the objection of the mortgagor, the mortgagee would he required to use such force as would amount to a breach of the peace, or an assault, or subject him to an action for trespass, 'he must resort to the courts for redress, and cannot forcibly or violently take possession of the mortgaged property.

2. Same — Eight to Redeem — After lawfully obtaining possession of the mortgaged property, the mortgagee must hold it subject to the customary rule applicable to mortgagees in possession of a chattel; that is, within a reasonable time, unless redeemed ■by the mortgagor, he must dispose of tfhe property at a fair sale, and on adequate notice, returning to the mortgagor any surplus above the balance owing by him.

3. Damages — Measure of — The measure of damages for property unlawfully taken and sold by the mortgagee under a chattel mortgage, is the fair market value of the property at the date of its conversion.

4. Verdict — Where several defendants wrongfully seized and carried away the property of the plaintiff, each of said defendants is liable for whatever damage resulted from their wrongful act, and a joint verdict may be rendered against all of them.

5. Practice — Closing Argument — Where the answers traverse every material allegation of the petition, the burden of proof is upon the plaintiff, and under suh-sielction 6 of section 317 of . the code he is entitled to the conclusion of the argument to the jmy.

JOHNSON & HIEATT, for appellants, Lawrence Hawkins and the Hawkins Furniture Co'.

W. L. DOOLAN, for appellant, Maxwell.

BENNETT H. YOUNG and H. TURNER WILSON, for appellee.

OPINION OF THE COURT BY

JUDGE MlLLER

Affirming.

On August 28, 1906, the appellee, Jessie Morris, borrowed from C. M. French $150, for which she executed to him a note for $210, secured by a chattel mortgage upon the contents of her residence at 125 West Green street in Louisville. The note was payable in monthly installments of $17.50 each, beginning one month thereafter. The mortgage provided that in case the mortgagor failed to make any one of the monthly payments when due, the mortgagee could enter the house, take possession of the mortgaged property, sell it at public or private sale, and apply the proceeds thereof to pay *740whatever balance might remain unpaid on the mortgage. On November 1, 1906, French,“in consideration of $150, assigned the note and mortgage of H. J. Maxwell. Ap-pellee paid the first installment due on the 28th of September, and on the 8th of October she left Louisville on a visit to Oklahoma. The installment due upon the mortgage on October 28th was not paid; whereupon Maxwell entered appellee’s house, took possession of its contents, ' and sold them to the appellant Merriman,. who was doing business in the name of the Hawkins Furniture Co., for $225. Merriman proceeded to sell the furniture, and had about completed the sale when the appellee returned to Louisville on the morning of November 8th. She was very much surprised and indignant at what she termed the high-handed procedure of the appellants, and insisted upon them restoring her furniture and leaving the premises. They not only declined to do so, but Mer-riman threatened to have her arrested, saying .that he had bought the furniture and proposed to deal with it as his own. Merriman conducted an auction on the ap-pellee’s premises for perhaps a day and a night, and afterwards removed the unsold portion of the furniture. Shortly thereafter- the appellee sued Merriman, Maxwell and Hawkins, for the value of the property so sold by them, laying its value at $5.054.85. The petition specifically set forth each piece of furniture taken, and the value thereof. Upon the trial the appellee obtained a joint judgment against the appellants for $2,500, and from a judgment upon the verdict thev appeal.

The appellants specify twenty-nine separate and specific grounds for a reversal; but under our view of the case is not necessary to consider more than a few of them.

1. This court has repeatedly recognized the binding force of a clause in a chattel mortgage which gives the mortgagee the right to enter the premises and take possession of the mortgaged property and sell the same upon the failure of the mortgagor to perform the covenants of his contract. But, in 'asserting his rights the mortgagee is, on the- other hand, required to respect the rights of the mortgagor, and will be liable for any damages resulting from an infraction of those rights. If, in taking possession of the property over the objection of the mortgagor, he would be required to use such force as would amount to a breach of the- peace, or an assault, or *741subject Mm to an action for trespass, be must resort to tbe courts for redress, and can not forcibly or violently take possession of tbe mortgaged property. But short of sucb forbidden acts tbe mortgagee is within tbe letter and spirit of bis contract, and may proceed to execute it. Andrews v. The Manufacturer’s Co., 20 Ky. Law Rep., 1089. Furthermore, after lawfully obtaining possession of tbe mortgaged property tbe mortgagee must bold it subject to tbe customary rule applicable to mortgagees in possession of a chattel; that is, within a reasonable time, unless redeemed by tbe mortgagor, be must dispose of tbe property at a fair sale, and on adequate notice, returning to tbe mortgagor any surplus above tbe balance owing by him. White Sewing Machine Co. v. Conner, 111 Ky., 831.

In tbe case at bar there can be no claim, under tbe proof, that tbe appellants even attempted to follow this well established rule; on tbe.contrary, instead of bold-ing tbe goods for redemption a reasonable time, and thereafter giving an adequate notice before sale, tbe appellant, Maxwell, seized tbe property and sold it at once to Merriman for tbe insignificant sum of $225, and be immediately thereafter peddled it out for whatever be could get for it at a quick and forced sale.

Therefore, tbe only question to go to tbe jury under tbe proof was tbe amount of tbe damage. If that issue was properly tried, there can be no reversal of tbe judgment of tbe circuit court.

2. Tbe third instruction fixed tbe measure of damages at tbe fair market value of tbe property taken and sold by tbe appellants, at tbe date of tbe conversion of said property, not to exceed tbe sum of $5,054.85, tbe amount claimed in tbe petition, with or without interest thereon, in tbe discretion of tbe jury, to be credited upon tbe balance owing by tbe appellee upon tbe mortgage. This instruction properly gave tbe law of the case under the authority of White Sewing Machine Co. v. Conner, 111 Ky., 830, and tbe cases there cited. Thé evidence as to values being contradictory, it was for tbe jury to fix tbe amount; and we are not prepared to say, under tbe evidence, that its finding of $2,500 was excessive.

3. It is insisted, however, that tbe jury should have been allowed to return a verdict finding different amounts against tbe several defendants. This was not *742asked in any instruction offered by tbe appellants, but arises out of tbe fact that after tbe jury bad retired to consider tbe case they returned a general verdict in favor of tbe plaintiff for $2,500,less $187.40, tbe unpaid portion of the mortgage, without mentioning any of tbe defendants. Tbe court thereupon directed tbe jury to retire and have their verdict show against which of the defendants tbe recovery was assessed. After further considering tbe case tbe jury returned into court and asked if they could find different amounts against tbe different defendants, and tbe court instructed them that tbe recovery was one, and could not be subdivided. Whereupon, tbe jury returned a joint verdict against tbe several defendants as above recited. Tbe pleadings fully sustain this verdict. Tbe several appellants were jointly charged with having wrongfully seized and carried away the property of tbe appellee; and, if that were true, each was liable for whatever damage resulted from their wrongful act. Pool v. Adkisson, 1 Dana, 111; Ballentine v. Joplin, 105 Ky., 79; American-German National Bank v. Gray & Dudley Hardware Co., 129 Ky., 119.

4. It is insisted that tbe appellants should have been. allowed to make tbe closing argument to tbe jury, and that the circuit court erred in refusing to so rule. We are of opinion that tbe court properly gave the closing argument to tbe appellee. Subsection 6, of section 317 of tbe Code, provides, that tbe party having tbe burden of proof should have the conclusion in tbe argument, and the' adverse party tbe opening; and in defining tbe burden of proof section 526 provides, that tbe burden of proof in the whole action lies on tbe party who would be defeated.if no evidence were given on either side. As the general answers traverse every material allegation of the petition, it is manifest, without argument, that tbe appellee would have failed upon tbe trial if tbe parties bad introduced no proof; and, that being true, tbe burden was upon appellee, and her attorney was entitled to make tbe closing argument to tbe jury.

Under this view of the case it becomes unnecessary to consider tbe many other questions raised by tbe motions for a new trial; and while there may have been some minor errors in tbe rejection of testimony, they were not sufficient, in view of tbe admitted testimony, to prejudice appellants’ substantial rights.

Judgment affirmed.