My study of the record convinces me that respondent, in settling with its tenant Blows and regaining immediate possession of the building, for a sufficient consideration, released Blows from all rent due or to become due, and that the lease to Blows was then, by mutual agreement, canceled. The dismissal of the pending action with prejudice is strong evidence of such an agreement, and there is no evidence to the contrary. That being so, the chattel mortgage given by Blows to secure the rental without further action at once ceased to have any force or virtue, since there was, and could be, no further rental maturing under the canceled lease.
Therefore the reference in the bill of sale to "mortgages and incumbrances of record," as quoted by the majority, could not refer to a mortgage which had been canceled and set aside by mutual agreement, but must of necessity refer to any such mortgage or mortgages *Page 532 which were then in force or effect or, in other words, to the Swanson mortgage.
In my opinion, the appellant is entitled to recover the value of the furniture as of the date of conversion, less the amount which was secured by the Swanson mortgage.
HOLCOMB, J., concurs with TOLMAN, J.