Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-23


is OF frequent occurrence that mort
cages are given to secure the per
formance Of contract for the main
tenance and keeping of the mort
gagee. Cook v. Bartholomew 13 L
K A. 452; Bachmeier V. Bachemeier
90 MINI. 472; Colman " Whitney
L. r. A. 517. In Patton v. Dixon, 8:
Or. 1853, So Pac 1O4S, this court helC
that equity will grant relief to on,
VINO has made conveyance of prop,
erty in consideration of her future
support, although the plaintiff had 3
remedy at law, and to avoid multi.
plicity of actions will make the main,
tenance of the plaintiff a charge
upon the premises.
In the class of contracts men.
toned in the cases last above noted
the person for the benefit of whom
the contract was made, could have
maintained an action at law to re-
cover damages for the breach of the
contract by the other party. II. as
declared by this court in Patton v
Dixon, the court Of equity could i'm
pose charge upon the real proper
ty In qeustion to secure the per-
formance of the provisions of the
contract for which an action for
damages would lie, it follows by
analogy that parties may contract in
advance to secure the performance
OF such a contract by mortgage
upon the property. In good reason
1t makes no difference whether the
mortgage was given upon real or
personal property. In either case It
is a security We conclude then,
that 1t is competent for parties to
make a chattel mortgage to secure
the payment Of damages which may
be occasioned by The breach Of a
contract for the sale Of the property
in question.
AS we have already seen, it is
competent for tbs mortgage to
maintain his action of replevin to re-
cover the possession of the property
upon breach of the conditions in a
mortgage on the part of the mortga-
gor, To establish his allegation of
ownership, a part of his proof is nee
essarily the establishment of the
breach AS showing this breach he
is entitled to prove that certain ad-
vances made by him have not been
repaid. In good reason he may also
show that he has been damaged by
reason Of the failure of the mortga-
gor to perform his agreement for the
sale of the property, for the default
Of the mortgagor in this respect is
under the terms of the mortgage in
question here as much a breach as
the failure to repay the advances,
Not only so, but he is entitled to
prove both these elements of unpaid
advances and, damages as the meas
ure of the plaintiffs Judgment for
the value of his property in the
goods IN question, for in any event
If he had been repaid, his advances
and such damages as accrued to him
by reason of the failure of the mort
gagor to comply with the terms Of
the contract of sale, the mortgage
would have no further property in
the hops.
The unpaid advances as the court
found amounted to $7271O and this
must be counted as one element of
the alternative Judgment for the
value of plaintiffs property in the
hops. The additional element Of
damages to which the plaintiff would
be entitled is measured by the differ
ence between the contract price of
1O& cents per pound and the great
er market value of rs cents per
pound. AS found by the court, the
gross weight of the hops was 10000
pounds, contained in So bales. The
contract also provided that five
pounds tare per bale should be de-
Quoted, amounting to 265 pounds,
leaving the net weight Of the hops
1O,O35 pounds. The damages then
would be calculated upon this num-
Der of pounds at 14A cents per
pound, amounting to 81, 429.9S which
added to the $7371O advances makes
a sum total of $2,167OS, which is the
measure Of the value of the plain
tiffs' property in the hops in ques-
ton and the measure of the alterna-
tive judgment TO be rendered against
him in case delivery cannot be had.
The court rendered an absolute
Judgment against tn defendant for
the sum of $2,5175O. This was er-
ror, not only because 1t failed to rem
der an alternative judgment allow
ing return of the property, If a re-
turn could be had, but also because
It as in excess Of the value Of the