
    The Capital Loan & Savings Co. v. The Baltimore & Ohio Rd. Co.
    (Decided January 10, 1933.)
    
      Messrs. Flory & Flory and Mr. C. G. L. Yearich, for plaintiff in error.
    
      Mr. Edward Kibler and Mr. F. Frazier, for defendant in error.
   Carver, P. J.

The parties stand in the same relative positions in this court as they did in the lower court and will be referred to here as plaintiff and defendant.

Plaintiff’s petition sets forth that on April 25, 1928, William and Carrie Washington executed to plaintiff their note for $350, due six months after date; that on October 13, 1930, there was unpaid on said note the sum of $325; that to secure the payment of said note the Washingtons executed and delivered to plaintiff their chattel mortgage covering two horses, which said mortgagors had upon the farm in their possession in Licking county, Ohio; that said mortgage was properly sworn to and filed with the recorder of Licking county, and refiled, and was properly on file at the time of the beginning of this action; that on October 13, 1930, a locomotive, operated by the defendant, killed the two horses covered by the mortgage; and that the defendant, Baltimore & Ohio Railroad Company, without the consent or knowledge of the plaintiff, and without notice of any kind to it, paid to said Washingtons the sum of $135, as the value of said horses, and defendant has failed and refused to account to plaintiff for said sum of $135, although repeated demand for said sum has been made by the plaintiff upon the defendant. There are other allegations in the petition not necessary to be stated here, and a prayer for judgment in the sum of $135, with interest.

Defendant demurred to the petition, the demurrer was sustained, and, the plaintiff not desiring to plead further, judgment was entered against it. Plaintiff prosecutes error.

Although the note secured by the chattel mortgage was long past due, no. allegations are made in the petition that the plaintiff made any movement toward foreclosing its mortgage or taking possession of the mortgaged property, so we conclude that it allowed the mortgagor to remain in undisputed possession of the mortgaged horses until they were killed by the locomotive of the defendant.

Suppose the chattel mortgage had covered other chattel property worth a great deal more than enough to secure the mortgage indebtedness due plaintiff, and plaintiff had then refused to make any effort to collect from defendant the value of the mortgaged horses, because of the sufficiency of the remaining chattels to secure its debt, would the mortgagors be without remedy in such case? We think not. The mortgagors in possession had an interest in the subject of the mortgaged horses, which they could protect by suit or settlement. They made settlement with defendant for killing the horses, which settlement is a complete discharge for the defendant from any further liability for killing the horses. Chicago, R. I. & P. Ry. Co. v. Earl, 121 Ark., 514, 181 S. W., 925, Ann. Cas., 1917D, 552; Illinois Central Ry. Co. v. Hawkins, 65 Miss., 200, 3 So., 410; Vandiver v. O’Gorman, 57 Minn., 64, 58 N. W., 831.

Finding this reason for sustaining the demurrer, we make no decision upon the other reasons assigned for sustaining same, which were argued by counsel in their briefs. The judgment of the lower court is affirmed at the costs of the plaintiff in error.

Judgment affirmed.

Sheeick and Lemert, JJ., concur.  