Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-23
OREGON SUPREME COURT DECISIONS
Fu Text PubIsasd BY Courtesy +. Turner. Reporter Of the
Supreme Court

1 tine foreclosure OF HiOIlSd5So VI PSi
sonal property and in the event Of such
property, and in the event Of such
default or breach hereby agrees tC
pay to the said buyer the said sums
so advanced and interest thereon as
aforesaid, and the damages which
shall be sustained by the said buyer
to be ascertained as above provided
and in addition thereto reasonable
sum to be fixed by the court, should
suit be brought to foreclose this
mortgage, as attorneys fees for in
stituting suit" The instrument was
recorded as chattel mortgage and
the court finds that the plaintiffs ad-
vanced to the grower, during the
process of the crop season, the sum
Of $7371O and that she has not re-
paid the same. She raised upon the
premises described in the hop con-
tract 10000 pounds of hops, put up in
So bales, but she refused to deliver
same to plaintiffs and transferred
them to one Abrams, who later sold
them to the defendant McGillivray.
He retained them in Multnomah coun-
ty until they were taken by the sher-
if under the writ of replevin in this
action. He then executed a re-de-
livery bond and took the hops from
the sheriff and sold them about No
vember II, 1909. The court finds
that the plaintiffs Performed their
part of the contract in every respect
and rendered to the grower in law
ful money Of the United States the
balance due her upon the purchase
price at 10% cents per pound but
she declined to accept the tender and
refused 10 deliver the hops. The de-
termined that the hops were of the
reasonable value of 25 cents per
pound, or in the aggregate the sum of
$2,51750 and that the defendant Nc
Gillivray had actual personal no.
tice and knowledge of the hop con-
tract and chattel mortgage and of the
plaintiffs right hereunder at and
prior to the time he acquired pos
session Of the hops The court rem
dered judgment to the effect that the
plaintiffs at and prior to the COM
mencement Of the action were and
now are the owners and entitled to
the immediate possession of the hops
mentioned and described in the com
plant, the same being of the value of
$2,5175O; but, inasmuch as 1t ap-
peared that the defendant had dis
posed Of the hops and could not now
deliver possession of the - to
plaintiffs, the judgment way entered
against the defendant in favor of the
plaintiffs for the full sum of $2,5175O
together with costs and dibursements.
The defendant appeals from this
Burnett, j. It is agreed by the
parties that the question here is
whether the judgment was the prop
er conclusion to be reached from the
Of fact as reported by the
court. The contention of the defen-
dant Is that the mortgage cannot
repleyin for mortgaged
where his damages are un-
liquidated; that the damages had not
been ascertained at the time the ac-
tion was commenced, and that in Or
der to allow the plaintiffs to recover
this action their damages must have
been previously ascertained in some
other proceeding, In support Of this
the defendants cite two
authorities; Jones on Chattel Mort
cages Sec. 80, and Backhaus v. Bu-
ellis, 4S Or, 55S The citation from
Jones on Mortgages reads thus: "A
condition In power Of sale mort
gage must be one for the breach Of
which the damages are liquldated
The mortgage in such a mortgage
takes the law into his own hands in
executing the power OF sale, and ifI
damages are unliquldated he cannot
sell the property upon a breach be-
cause he will not be allowed to be
his own Judge and assess his own
damages and then sell the property
10 satisfy them" This citation does
not apply to the case In hand for the
mortgage here is no tone giving the
mortgage here is not one giving the
On the contrary the express stipula-
ion OF the mortgage clause of the
under consideration is that
I is to be toreclosed in the manner
provided by law Sec. 422 L. o. L. |
'rovides, "a lien upon real or per- /
onal property other than that OF a /
Judgment or decree, whether created
y mortgage or otherwise, shall be |
oreclosed and the property adjudged
o he sold to satisfy the debt secured
hereby by q suit" Sec. IAN L. O |
. reads thus; Whenever in any
'ortgage OF any goods and chattels
hn narffae t, s,..h -.