It has been urged in the original briefs by defendant, as well as on rehearing, that the contract between the plaintiff and defendant constituted an absolute sale of the property involved in this action. The record in this case, as shown on pages 9, 49-59, and 60, clearly shows that the defendant, time and again, executed and delivered to the plaintiff a memorandum in writing acknowledging receipt from the plaintiff of certain interest on account of the loan theretofore made to plaintiff. It appears from the record that the defendant also wrote the plaintiff that it was taking good care of her property. This correspondence between the parties clearly shows that they treated the transaction as a loan.
The name or title adopted by a business concern is usually intended as being descriptive of the character of the business in which it is engaged. The defendant, a corporation, operated and did business under the name of Goldberg's Loan Office, and from all the facts and circumstances in this case it is clearly demonstrated that the particular transaction between the parties to this action was in harmony and accordance with the character of business designated by the corporate name of the defendant.
It is further insisted that, when property is pledged in order to secure a loan, the creditor can look only to the pledged property for the payment of said loan. This contention is not supported by the authorities.
In Jones v. Marshall, 24 Q. B. D. 269, the question arose as to whether or not a pawnbroker might bring an action for a deficit upon a sale of the property pawned. Lord Coleridge, C. J., said:
"I think it is clear that under the contract, read without reference to the act, the pawnbroker would have a right to recover the balance of the loan unsatisfied on the sale of the pledge. It is a contract of pledge, and if the article pawned does not realize the amount lent on it, he may bring an action for the deficit."
In the case of Alexander G. Mauge v. Bernard Heringhi,26 Cal. 577, the court held:
"A pledgee of chattels has a right at common law, if the pledge is not redeemed within the stipulated time, to sell the property pledged at auction, by giving public notice of the time and place of sale, and if the sale does not satisfy the debt, he may recover the deficiency from the pledgor by an action at law."
In 21 Rawle C. L. page 685, under the subject of "Pledges," section 47 is as follows:
"The taking of collateral security for the payment of a debt does not, in the absence of a statute or stipulation to the contrary, afford any implication that the creditor is to look to it only or primarily for payment of the debt. The obligation of the debtor to respond in his person and property is the same as if no security had been given, and upon default in payment, the pledgee may elect to sue the pledgor for his debt, without a sale of the security, and may recover judgment in such suit against the pledgor for the amount of the debt, without destroying or in the least affecting his lien on the property so pledged."
The above principle was stated in the case of Rogers v. Ward, a Massachusetts case, reported in 85 Am. Dec. 710, as follows:
"Taking a collateral security for payment of debt affords no implication that creditor is to look to it only or primarily for the payment of the debt. The debtor's obligation to respond in his person and property is the same as if no security has been given."
CLARK, RILEY, HEFNER, CULLISON, SWINDALL, and ANDREWS, JJ., concur. HUNT, J., dissents. *Page 151