The provisions of the Gen. Stats., ch. 123, secs. 19-21, were made for the benefit of the mortgagor, and may be waived by him. A sale of the chattels, mortgaged by the mortgagee, with the assent of the mortgagor, is just as effectual as a sale under the statute, with the formalities prescribed by law. Patrick v. Meserve, 18 N.H. 300.
It is not to be presumed that Towle was empowered to negotiate a sale, unless his efforts could be made available. For what purpose was he to find a purchaser, unless it was that when he had found one, at such price as was satisfactory to him and the mortgagees, the latter should carry out the negotiation by receiving the pay, and apply it upon his debt? The case then, stands thus: The mortgagors agreed that the mortgagees might sell the hay at private sale, dispensing with the formalities required by the statute. The mortgagees constituted one of the mortgagors their agent to find a purchaser, — that is, to bargain the hay at a price satisfactory to them, — but not to receive the pay therefor. It makes no difference that the defendants did not know at the time that Towle was acting as the agent of the plaintiffs. They had notice of it before they paid for the hay, and were notified to pay the principals, and are therefore liable in this suit. Chandler v. Coe, 54 N.H. 561.
CUSHING, C. J., concurred.
Judgment on the verdict. *Page 146