Appeal, No. 81, March T., 1951, from judgment of Court of Common Pleas of Indiana County, Dec. T., 1948, No. 183, in case of Arcady Farms Milling Company v. Walter Sedler. Judgment affirmed.
W. Thomas Malcolm, with him Parnell, Handler and Malcolm, for appellant.
Jesse P. Long, with him William E. Pierce, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The question is whether the chattel mortgage is valid under the provisions of the Chattel Mortgage Act of June 1, 1945, P.L. 1358, 21 PS 940.1 -- 940.16.
Appellant instituted an action in trespass against appellee for the conversion of approximately 1400 turkeys upon which appellant alleged that it held a valid chattel mortgage. Appellee filed preliminary objections which were sustained by the court below. Judgment was entered for appellee. The appeal followed.
The facts as averred in the pleadings and quoted by the court below are: "That in March of 1946 plaintiff entered into an agreement with one Howard S. Rose whereby plaintiff was to furnish feed and supplies for turkeys of the said Rose during the year 1946 on a credit basis; that as security for the cost of feed and supplies to be advanced, the said Howard S. Rose and Jennie Rose, his wife, on the 30th day of March, 1946, executed a so-called chattel mortgage in favor of plaintiff for $9000.00, mortgaging 'all of the turkeys (approximately 3000) located on farm owned or occupied by Mortgagors in Section Western, Township of Center, Range of the P.M. in Indiana County, Pennsylvania, hatched or acquired in the year 1946, together with all increases or additions thereto, whether by reproduction, purchase, acquisition, or otherwise, and all eggs produced by said turkeys', providing that 'All sums secured hereby shall become due and payable on or before January 15, 1947', said chattel mortgage being recorded in the Prothonotary's Office of Indiana County on April 1,
, (Copy being attached to the complaint and marked Exhibit A); that plaintiff supplied to Rose feed to the total value of $8261.36, upon which was paid $2945.64, and on January 24, 1947, bill for the balance was rendered to the said Rose; that sometime during the month of December, 1946, the said Rose transferred approximately 1390 turkeys to Walter Sedler, the defendant, and received therefor $6439.16; that the defendant 'did unlawfully and wrongfully take and carry away the said turkeys and converted the same to his own use'; that the defendant, 'on demand of the plaintiff, has refused to deliver the said goods or the value thereof to the plaintiff... but has unlawfully converted the same to his own use, to the damage to the plaintiff...'". Appellant averred that appellee, when "... the turkeys were taken away from the farm of... Rose, knew or had reason to know of the mortgage existing between said... Rose, and [appellant]." Because the judgment for defendant is entered on the pleadings, all averments in the statement of claim must be regarded as true.
The basis for appellant's claim is the wrongful conversion of personal property upon which appellant averred it possessed a lien and of which fact appellee had actual or constructive notice. It, therefore, follows that a valid chattel mortgage upon the personal property must have existed in order to sustain appellant's claim.
The Act of 1945, supra, authorizing the creation of a mortgage on personal property (i.e., a chattel mortgage) is in derogation of the common law. While the Statutory Construction Act of May 28, 1937 P.L. 1019 art. IV sec. 58, 46 PS 558, enacts that statutes in derogation of the common law are no longer required to be strictly construed, nevertheless, chattel mortgages have not been favored in this Commonwealth: Roos v. Fairy Silk Mills, 334 Pa. 305, 5 A.2d 569. It was said ...