Witherow, a farmer, mortgaged his portion of a crop to be grown on certain leased premises, during the season of 1921, to Campbell and later mortgaged the same crop to appellant subject to the Campbell mortgage. Certain persons had performed labor on the farm and in raising and harvesting the crop for which they had not been paid. At the direction of Campbell, Witherow sold the grain to respondent, a warehouse corporation, in whose warehouse it had been stored. Respondent deducted its warehouse storage charges and paid the balance to Witherow, who paid the labor claims and the Campbell mortgage. From a judgment in its favor for a portion of the amount claimed, appellant prosecutes this appeal and assigns a number of alleged errors, on account of which we are asked to direct the district court to enter judgment for the amount claimed. Only those assignments material to a determination of the appeal will be passed on.
On the morning of the day the cause was set for trial, the court, over the objection of appellant, permitted an amended answer to be filed. The amended answer set up a defense and included denials not contained in the original answer. In allowing the amended answer to be filed, the court offered to postpone the trial until later in the term or to adjourn the term for two weeks and return and try the cause. Without suggesting any reason why either proposition made by the court was not agreeable or satisfactory, appellant proceeded to trial. It does not appear that the filing of the amended answer deprived appellant of any substantial right. Permitting the amended answer to be filed was a proper exercise of the court's discretion. (Cady v. Keller, 28 Idaho 368, 154 P. 629;Trousdale v. Winona Wagon Co., 25 Idaho 130, 137 P. 372; IdahoPlacer Min. Co., Ltd., v. Green, 14 Idaho 294, 94 P. 161.) *Page 42
A jury having been waived, the trial court found that respondents converted the chattels, adjudged it liable in damages to appellant in a sum equal to the value of the grain, and no objection is made to the findings and judgment in this respect. The court found that appellant was damaged, by reason of the conversion of the grain, in an amount equal to the value of the grain less the amount of the prior mortgage on the grain, less certain warehouse charges of respondent, less the sums paid to divers persons for labor in harvesting, hauling and housing the grain, and general labor on the farm on which the grain was grown.
With respect to the assignment that the court permitted a reduction of appellant's damages in the amount of the prior mortgage, appellant's mortgage was not only subsequent in time but was expressly made subject to the mortgage to Campbell. On a conversion of mortgaged chattels, a junior mortgagee is entitled to damages sufficient to compensate him for his actual loss. In this case, however, the value of the grain, as found by the trial court, did not equal the amount of both mortgages; it was less than the amount of the second mortgage but was greater than the amount of the first. The interest of the second mortgagee was the value of the grain, less the amount of the first mortgage; and his actual loss from the conversion of the grain was the value of the grain less the amount required to discharge the first mortgage. There was no error in allowing a reduction of appellant's damages by the amount of the Campbell mortgage. (Nohrnberg v. Boley, 42 Idaho 48,246 P. 12; Citizens' Nat. Bank v. Osborn-McMillan Elevator Co.,21 N.D. 335, 131 N.W. 266; Lovejoy v. Merchants' State Bank,5 N.D. 623, 67 N.W. 956; Thompson v. Anderson, 86 Iowa, 703,53 N.W. 418; Berkner v. D'Evelyn, 119 Minn. 246, 137 N.W. 1097;Pierce v. Benjamin, 14 Pick. (Mass.) 365, 25 Am. Dec. 396;Dempster Mill Mfg. Co. v. Wright, 1 Neb. (Unof.) 666, 95 N.W. 806; Harrill v. Weer, 26 Okl. 313, 109 P. 539; Madden v.Walker, *Page 43 7 Kan. App. 697, 51 P. 914; First Nat. Bank of Heresford v. Dunlap (Tex.Civ.App.), 159 S. W, 502; Harris v. Grant, 96 Ga. 211,23 S.E. 390; 11 C. J. 605 and 620.)
As to the warehouse charges for storage, respondent was a "warehouseman." The prior mortgage provided for the delivery of the grain to the first mortgagee "at the Farmers Union Warehouse at Fenn . . . . to be held . . . ." It was stipulated in appellant's mortgage that it was "Subject to mortgage . . . . to G. B. Campbell Son." The covenant in the first mortgage that the grain would be delivered at the warehouse of respondent to be there held would certainly foreclose the first mortgagee from contending that he had not agreed to the storage of the grain. By making the second mortgage subject to the first mortgage, it was made subject to the provision in the first mortgage that the grain be delivered to the warehouse and there held. Appellant must be held, by having made its mortgage subject to the Campbell mortgage, to have thereby consented to the delivery of the mortgaged grain to the warehouse to be stored.
A warehouseman has a lien "on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage . . . . of the goods; . . . ." (C. S., sec. 6145.) The statute does not make such a lien superior to that of the lien of a chattel mortgage on the stored goods. But a warehouseman's lien for storage takes precedence over the lien of a chattel mortgage where the mortgagee consents to the storage. (Schmidt v. Perkins Van Storage Co., 27 Cal. App. 667,155 P. 647. [5] The court did not err in allowing the deduction for storage charges.
The trial court found that one Tilson under Witherow's employment, "performed labor upon the said farm lands generally and in such work did work on other portions of said farm lands not planted to crop for the year 1921, and built fencing, removed rocks from portions of the said land, cared for cattle and stock . . . . of Witherow, *Page 44 and . . . . plowed and prepared a tract . . . . which was not seeded at any of the times herein mentioned; and that no separate account or record was kept of the work performed upon the said crop. . . . ." Tilson was paid $448 from the proceeds of the grain. No claim of lien was filed by him. It is apparent from the findings that a portion of the services rendered by Tilson was lienable and that a portion of his services was not lienable. No record was kept of lienable services and such services were not sufficiently established by the evidence. In a recent decision, Wheatcroft v. Griffith, 42 Idaho 231,245 P. 71, this court held:
"Where a farm laborer performs services for which he is to be compensated under an entire contract embracing both lienable and nonlienable items, he is only entitled to a lien for the value of the lienable items when the value thereof can be distinguished from the amount due for nonlienable items. If the value of the lienable services cannot be distinguished from the value of the nonlienable services, the lien must fail. Lee v.Lee, 48 N.D. 971, 188 N.W. 43; Clark v. Brown, 141 Cal. 93,74 P. 548."
Under the authority of Wheatcroft v. Griffith, supra, no lien for the services of Tilson having been established, it was error to deduct the sum paid him from the proceeds of the crop.
The court allowed the deduction of a sum paid divers persons for labor furnished in "harvesting and hauling and housing" the crop of grain, and it is contended that this was error. At the time these persons were paid, sixty days had not elapsed "after the close of said work," C. S., sec. 7373, and they had not filed claims of liens. Respondent contends that since the period for the filing of claims of liens had not expired, these laborers had liens superior to that of appellant's mortgage. In support of this position respondent cites Anderson v. GreatNorthern Ry. Co., 25 Idaho 433, Ann. Cas. 1916C, 191, 138 P. 127; Groesbeck v. Barger, 1 Kan. App. 61, 41 P. 204; Fossettv. Rock Island *Page 45 Lumber Mfg. Co., 76 Kan. 428, 92 P. 833, 14 L.R.A., N. S., 918; Dunlop v. Kennedy, 4 Cal. Unrep. 196, 34 P. 92; andCentral Trust Co. v. Richmond, N. I. B. R. R. Co., 68 Fed. 90, 15 C.C.A. 273, 41 L.R.A. 458. These cases are in point and tend to sustain the trial court. However, the identical question was recently before this court, Nohrnberg v. Boley,42 Idaho 48, 246 P. 12, and in a divided opinion on rehearing, it was held that sums paid laborers for harvesting a crop could not be deducted from the damages arising from a conversion of the crop, where claims of liens for such services had not been filed, even though in that case, as in this, the sixty day period for filing claims of liens had not expired. There can be no doubt that Nohrnberg v. Boley, supra, determined the identical question here presented; and, on the authority of that decision, it must be held that the trial court erred in deducting the sums paid these laborers.
In fairness to the trial court, it is proper to state thatWheatcroft v. Griffith, supra, and Nohrnberg v. Boley, supra, were decided after the entry of judgment in this case.
It would serve no useful purpose to direct a new trial, and would subject the parties to additional costs and expense. We have concluded, therefore, to reverse the judgment and remand the cause with instructions to make findings of fact and conclusions of law and enter judgment in favor of appellant for what was found to be the value of the grain, less the amount of the Campbell mortgage and the warehouse charges for storage.
Costs to appellant.
William A. Lee, C.J., and Budge, Givens and Taylor, JJ., concur. *Page 46