This is an action to recover possession of personal property, to-wit: Stock, fixtures and furniture of defendants’ drug store. Plaintiff’s claim is under a chattel mortgage, executed by defendants, to secure a $5,000 note to plaintiff dated October 1st, 1876; payable one year after.
This suit was instituted August 14th, 1877, two months before the maturity of the note, and plaintiff bases its right to recover upon a stipulation in the mortgage, which, after providing that the mortgage property should remain in the possession of the mortgageors until the maturity of the note, contained this condition: “ In case of sale or disposal, or attempt to sell or dispose of said property, or an unreasonable depreciation in the value thereof,” plaintiff or its legal representatives, might take said property or any part thereef, into its possession.
The mortgage not only covered the stock, fixtures and furniture then in the store, but “any and all articles that may hereafter be added to the present stock, or fixtures or furniture, and, which may be on hand at the time the St. Louis Drug Store claims possession.” The cause was referred to E. A. "Wislizenus, Esq., to try the issues; and, among other focts reported as found by him, are the following: “ Hpon the execution of the mortgage, defendants with plaintiff’s consent, and, indeed under oral agreement to that effect, continued to retail the mortgaged property, and made additions to the stock from time to time. These additions, by no means, kept pace with the sales.” That: “ The conduct and conversation of the pai-ties to the mortgage, show that they understood the mortgage to require them to keep the stock of goods up to the standard of the value originally mortgaged.” “That the value of the property in the defendants’ drug store, at the time of the seizure, was a little more than one-half of the property on hand when the mortgage was given.” “ That there was no material shrinkage in the prices of drugs and other articles composing the stock.”
*24On these facts, the question arises, was there an unreasonable depreciation in the value of the stock, within the meaning of the above proviso ? The circuit court and court of appeals hold that there was, and defendants have appeal ed from the j udgment of the latter court. We do not agree with the court of appeals, that the provision of the mortgage, which contemplated additions to the stock on hand at the date of the mortgage, authorized a sale of any or all of the stock by the mortgageors. Weber v. Armstrong, 70 Mo. 219; Voorhis v. Langsdorf, 31 Mo. 452; Hewson v. Tootle, 72 Mo. 632. The mortgageors, therefore, under the mortgage, had no authority to dispose of the goods. The right they acquired to sell under the parol agreement, subsequent to the execution of the mortgage, was subject to a corresponding duty, imposed by that agreement, to keep up the stock to the standard of the value of the stock originally mortgaged; and it would hardly be consonant with justice to permit defendants to avail themselves of the privilege to sell under the parol agreement, and successfully claim that the diminution of the stock was with plaintiff’s consent, when under the agreement by which that consent was given, defendants were to replenish the stock from time to time, as diminished by sales. If defendants rely upon the parole agreement, they must stand by all its terms.
They had no right to sell, except upon the condition that they replenish the stock, and violating that condition, they stand as if they had sold without the permission of the mortgagee,. And by the terms of the mortgage, on a sale, or attempt to sell the, mortgaged property, plaintiff had a right to the possession. But on plaintiff’s petition its claim of the right of possession is not predicated upon a sale of the goods, but on the ground of an unreasonable depreciation in the value of the stock and other property mortgaged, and thus narrowed the grounds upon which it rested its claim.
Was there an-unreasonable depreciation of the value *25of tlie stock, etc. ? The mortgage was of a stock of drugs, fixtures and furniture, as an entirety. It conveyed the following described personal property in the city of St. Louis, State of Missouri: The stock and fixtures of their drug store at the northeast corner of 5th and Olive streets, consisting as follows: One prescription case and scales; one prescription counter and contents, one show case containing rubber goods, trusses, etc., one show case containing cloth, brushes and toilet articles; one case containing hair brushes, toilet articles, etc.; one show case containing drug goods, perfumery, etc.; one soda fountain, complete; eight copper fountains, four walnut counters, marble top, etc.; all the shelving on the north, east and south sides complete; about three hundred and fifty shop bottles, glass labels, and contents; all drawers and contents, with the usual stock of patent medicines, perfumery, drugs, medicines, glass ware, toilet articles and fancy goods, etc., kept in a first-class retail drug store, together with any and all articles that may hereafter be added to the present stock of fixtures, or furniture, and which maybe on hand at the time the St. Louis Drug Co. claim possession.
The stipulation, in relation to an unreasonable depreciation of the property, applied to the stock as an entirety.
The evident meaning of the parties was, that there should always be a sufficient amount of stock to keep the security as good as when the mortgage was given. This is apparent when the instrument is construed as giving no authority to the mortgageors to sell all, or any part of the stock. If there had been no other emergency in which plaintiff would be entitled to possession, except the occurrence of an unreasonable depreciation of the stock, and defendants without permission of the mortgageor, had sold one-half iff the stock without replenishing, the fallacy of the argujnent now made by their attorneys would be more apparent.
But the fact that plaintiff stipulated, also, that in the event of a sale of the mortgaged property, it might have *26possession, does not affect the construction of that part of the stipulation, relating to the depreciation in value. As was observed by the court of appeals, the sale of a part “ might very much depreciate the remaining stock.” The specific articles unsold might retain the same market value, and the stock, as an entirety, be greatly diminished in value. Language might have been employed in the mortgage which would more clearly express the meaning which, we think, that used conveys; but it is sufficiently manifest from the language which was employed.
Another proposition strenuously contended for by defendants’ counsel, is, that plaintiff, having been incorporated to manufacture and sell drugs, had no authority to indorse notes for the accommodation of others, and that the consideration of the note which the mortgage was given to secure, was plaintiff’s indorsement of defendants’ notes for accommodation, and, therefore, it cannot recover. Conceding the facts to be as defendants allege, it is sufficient on this point, to say that in a line of decisions of this court, unbroken except in the case of Matthews v. Skinker, 62 Mo. 829, it has been hold that the question of ultra vires can only be raised in a direct proceeding, by the State against the corporation, and not in a collateral proceeding by another, except when the charter of the corporation, not only specifics, and, therefore, limits it to the business in which it may engage, but by express terms, or by a fair implication from its term, invalidates transactions outside of its legitimate corporate business. McIndoo v. St. Louis, 10 Mo. 577; Chambers v. St. Louis, 29 Mo. 543; Pac. R. R. Co. v. Seely, 45 Mo. 212; Land v. Coffman, 50 Mo. 243. Since Matthews v. Skinker, supra, was decided, announcing a different doctrine, in the following cases this court returned to the doctrine of the earlier cases: A. & P. R. R. Co. v. St Louis, 66 Mo. 228; St. Joe Fire. & M. Ins. Co. v. Hauck, 71 Mo. 465; Thornton v. Nat. Ex. Bank, 71 Mo. 221; Union Nat. Bank, v. Hunt, 76 Mo. 439. The judgment of this court in Matthews v. Skinker, supra, was on appeal, reversed *27by tbe supreme court of tlie United States, aud the doctrine then announced by that court, is in harmony with that which, before, had been uniformly, and has since been repeatedly declared by this court.
The opinion of the court of appeals, delivered in this cause by Judge Bakewoll, contains a full statement of the pleadings and evidence, and an able and elaborate discussion of all points made in the case, and the questions which we have not noticed, are so fully and satisfactorily disposed of in that opinion, that we have not thought it necessary to enter upon a discussion of them.
The judgment is affirmed.