(dissenting). Since the promulgation and adoption of the majority opinion in this case I have become convinced that it reaches an erroneous conclusion. Therefore, I dissent thereto and think it proper to express my views. A brief statement of the facts will also be made.
In 1943, the defendant, H. V. Weaver, became indebted to the defendant, the Fourth National Bank of Tulsa (Tulsa county), in an amount which by the end of the year had been increased to $24,500. This indebtedness was secured by chattel mortgage upon some 481 head of steers, cows and calves. In November of that year defendant Weaver purchased from plaintiff 338 additional head of Mexican steers, branded in a certain manner, and, to secure the purchase price thereof, executed a chattel mortgage covering the same in the sum of $17,576, which was filed in the office of the county clerk of Creek county, Oklahoma, the county where the cattle were kept.
These cattle had been shipped by plaintiff to defendant Weaver, in June, 1943, for grazing and fattening, but, when they did not progress as expected, the sale was negotiated. The mortgage was prepared and signed by Weaver in Creek county, Oklahoma, and mailed to plaintiff at his residence in south Texas. It contained, in the printed form, the proviso that “No part of said mortgaged property shall be sold or disposed of in any way by said mortgagor without the written consent of said mortgagee.” Typed into the mortgage, immediately following the description of the property, was the provision, “Also in the event that I should dispose of any or all of said mentioned live stock I will remit at once all the proceeds of such sale to A. D. Eidson.”
On July 15, 1944, without any communication from plaintiff with regard thereto, defendant Weaver sold 140 head of the steers covered by plaintiffs mortgage for $8,727.90, which amount was, by the commission company making the sale, delivered to the defendant bank in the manner directed by defendant Weaver. In March, 1945, plaintiff brought this action against the bank and Weaver. The case was tried to a jury, resulting in a verdict and judgment for plaintiff and against both defendants, from which the defendant bank has perfected this appeal.
The majority opinion adopts plaintiff’s theory that the above-quoted provision which was typed into the mortgage superseded the printed provision requiring written consent of the mortgagee to a sale of the mortgaged property, making the sale of the property by the mortgagor one with consent. That being so, the funds derived therefrom constituted trust funds in the hands of the defendant bank which were recoverable by plaintiff under the provisions of 46 O.S. 1941 §71, as follows:
“Every mortgagor of personal property in this state, who with the consent of the mortgagee, or his assignee, shall sell such mortgaged property, or *151any part thereof, while the mortgage remains in force and unsatisfied, shall he deemed and conclusively held to be the trustee of the funds received upon the sale thereof, for the benefit of such mortgagee, or assignee, to the extent of the indebtedness secured thereby or any balance due thereof.”
The application of the above statute hinges squarely upon the question of whether or not the mortgaged cattle were sold with the consent of the mortgagee, plaintiff herein. This interpretation of the act was announced shortly after its passage. In the case of Bank of Jefferson v. First Nat. Bank of Medford, 158 Okla. 37, 12 P. 2d 540, this court held:
“Senate Bill No. 14, chapter 4, sec. 1, Session Laws of 1927, applies only to sales of mortgaged personal property, with the consent of the mortgagee, while the mortgage remains in force and unsatisfied, and the effect thereof is so limited by both the title and the body of the act.”
Therefore, plaintiff’s rights, if any, are entirely dependent upon the interpretation of the chattel mortgage contract. With reference to such situations, 15 O.S. 1941 §167 provides:
“Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and particular contract in question the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded.”
But, “The intention of the parties must be deduced from the entire agreement, and every provision must be construed so as to be consistent with every other provision if possible, and that construction adopted which gives effect to every part of the contract.” Sullivan v. Gray, 182 Okla. 487, 78 P. 2d 688.
In analyzing the contract herein, in the light of the last-cited rule, the printed provisions that Weaver could not sell the cattle without written consent from plaintiff is not necessarily repugnant to the typed-in provision relative to the disposition of the proceeds from a sale. Weaver was not, by the printed provisions thereof, prohibited from selling the mortgaged cattle. He was only prohibited from selling until he obtained written consent from plaintiff. Once that consent was obtained, the restriction of the typed-in portion of the mortgage governed his handling of the proceeds. He was required thereby to “remit at once all the proceeds of such sale to A. D. Eidson.” This is not a strained construction but is rather the natural one because of prior business relations between the parties. The situation between them was such that, had the additional restriction not been typed into the contract, Weaver probably had the implied authority to buy other cattle for plaintiff with the proceeds.
In the case of Babbitt Bros. Trading Co. v. Marley, 28 Ariz. 589, 238 P. 392, there was presented a fact situation very similar to that herein involved. Therein, in both the majority opinion and the dissenting opinion, the two conclusions, either of which might be reached, are discussed, together with the line of reasoning supporting them. It is readily apparent that the construction to be given the chattel mortgage in the case at bar should be in harmony with the intent of the contracting parties and, although the meaning of a written contract is ordinarily a question of law for the court, where the contract is susceptible of more than one construction and there is a dispute as to what was intended by the parties and that issue is properly raised by the pleadings, the construction of the contract is a mixed question of law and fact determinable by a jury under proper instructions of the court. Mitchell v. Vogele, 125 Okla. 176, 256 P. 906; Clark v. Herbert, 132 Okla. 272, 270 P. 329.
*152This reasoning is in harmony with the general rule that authority given the mortgagor of chattels by the mortgagee to sell the mortgaged property and account for the proceeds of the sale may be inferred. Such authority depends upon the intent of the parties and is a question of fact for the jury. Jones on Chattel Mortgages, §457; Ziegler v. Ilfeld, 52 Colo. 275, 122 P. 56; Gorin Sav. Bank v. Early (Mo. App.) 260 S. W. 480.
It is my opinion that the following instruction, given by the trial court and excepted to by defendants, erroneously took from the jury the determination of that question of fact:
“You are instructed that, if you find and believe from the evidence in this case that the 140 head of cattle which were sold by Weaver through Swift & Henry Livestock Commission Company in Kansas City on July 17, 1944 were part of the cattle on which the plaintiff, A. D. Eidson, has the mortgage which is in evidence, and you further find that such moneys were paid to the Fourth National Bank, then and in that event you are instructed that, under the laws of the State of Oklahoma, the defendant Weaver was a trustee of this sum of money, and when the money was placed in the Fourth National Bank, that the bank was simply holding that money for the trustee Weaver, and the money belonged to the plaintiff Eid-son, and that plaintiff Eidson would be entitled to recover said money with interest thereon from the 17th day of July, 1944.
“However, in this regard, if you find that the steers that were sold on July 17th, 1944, were not covered by the mortgage from Weaver to Eidson, then the plaintiff cannot recover.
“And further, if you find that some of the steers that were sold on July 17, 1944 were not covered by the mortgage, then you will deduct from the amount of money that these steers sold for on July 17, 1944, and the plaintiff would only be entitled to recover for the number of steers sold which were actually covered by the mortgage.
“You are further instructed if the bank did not know that this money came from the sale of mortgaged property, if you find it was mortgaged, and that the bank could have gotten the money owing it from other resources of Weaver, which were later lost to it, then your verdict should be for the defendant Bank.”
I also think that the above-quoted instruction took from the jury the determination of whether or not the defendant bank had notice of the origin of the funds when they were received by it and applied to Weaver’s indebtedness. As was held in the case of Security State Bank of Melrose, Minn., v. First Nat. Bank of Ismay, 78 Mont. 389, 254 P. 417, the defendant bank was not a creditor to whom the filing of the mortgage imported notice, but, for the sake of argument, assuming that the bank had actual knowledge of the mortgage, still, “This knowledge would not alone be sufficient to render the defendant liable; the plaintiff was required to show that the defendant had knowledge of the origin of the funds deposited.”
For these reasons, I think the judgment should be reversed and the cause remanded for a new trial, and I therefore respectfully dissent.