Broadhead v. Smith — 29 N.Y. St. Rep. 817

Majority

p. 817

Elizabeth K. Broadhead, App’lt, v. Elijah Smith and Fred. Booth, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 10,1890.)

Headnote

Chattel mortgage—Schedule.

A chattel mortgage described the property mortgaged as all machinery, tools, implements, appliances and personal property * * * mentioned in the schedule hereto annexed and now in the buildings, etc. The schedule annexed was signed by the mortgagor and contained a very minute list of articles, including machinery, etc. Held, that the general words of the mortgage did not cover articles not named in the schedule.

Appeal from judgment of county court, reversing a judgment rendered in favor of plaintiff by a justice of the peace.

The action was brought for an alleged conversion of one steam pump and one Davis plunger pump.

On December 20, 1875, the Cornwall Woolen Company executed a chattel mortgage upon its machinery, etc., to the Union Manufacturing Company, to secure the payment of $30,000. The mortgage was regularly renewed from year to year until its foreclosure, in 1886, when the property was bought in by the mortgagee.

After the execution of the mortgage, Maiy Broadhead purchased the mill property at sheriff’s sale. In December, 1884, she made an assignment, for the benefit of her creditors, to Harvey B. Taylor, who subsequently, on July 14, 1885, sold the assigned property at public auction. At this sale the assignee was notified that there was a chattel mortgage on the property in the mill, and gave notice that certain property was claimed by the Union Manufacturing Company, and that he would sell any interest that Mary Broadhead had in such property. Joseph Broadhead bought at such sale the assignee’s right “in the machinery in mill,” and subsequently assigned his purchase to plaintiff. Ho articles are enumerated in the receipt given by the assignee to Joseph Broadhead, or in the assignment of the purchase to the plaintiff.

The chattel mortgage transferred “ all the machinery, tools, implements, appliances, and personal property, and all other goods and chattels mentioned in the schedule hereunto annexed and. now in the buildings and on the premises situated in the town of Cornwall, county and state aforesaid.”

At the time of the execution of the mortgage there were two pumps in the boiler room of the mill, and these were connected

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with the boiler. One of these pumps became worn out, and a "new one was substituted in 1880. These pumps are used to fill the boilers and are necessary adjuncts of the boilers, which cannot run without them. It was admitted that the steam pump in controversy was in the mill at the time of the execution of the mortgage.

A schedule was annexed to the mortgage which purported to be “ an inventory of personal property mentioned and referred to in the annexed mortgage.” Said schedule did not contain any reference to or description of any pump whatever.

The county judge held that the mortgage should be construed as though there had been no schedule annexed to it, and no reference to the schedule contained in it.

Bound & Brewster, for app’lt; Howard Thornton, for resp’ts.

A chattel mortgage in the body of the instrument contained this clause as describing the property mortgaged by it. “ All machinery, tools, implements, appliances, and personal property, and all other goods and chattels mentioned in the schedules hereto annexed, and now in the buildings and on the premises situated in the town of Cornwall, county and state aforesaid.” The premises were a woolen mill and appurtenances.

There was a schedule attached to the mortgage and this contained a very minute list of articles, some known as machinery and fixtures and others mere detached articles of personal property.

The schedule stated that it is an “inventory of personal property mentioned and referred to in the annexed mortgage.” The inventory or schedule is signed by the mortgagor. The mortgage and schedule must be read together. Edgell v. Hart, 9 N. Y., 213 .

The general words of the mortgage are to be limited to the articles named in the schedule. The words of the mortgage itself name these “ all machinery, tools, implements, appliances and personal property ” and are as well subject to the schedule annexed as the words, “ all other goods and chattels ” mentioned there. The parties so understood the mortgage, for the machinery and appliances, tools and personal articles are all particularly stated therein, preceded by a statement that it is the property referred to in the mortgage.

The mortgage did not therefore cover property not mentioned in the schedule and the judgment of the justice was right, and should therefore be affirmed and the judgment of the county court reversed, with costs.

Dykman, J., concurs.