Barret v. Hart. And five to two of the judges in that case held, that "under a clause in a chattel mortgage, that if the mortgagee shall, at any time before debt becomes due, 'feel himself unsafe or insecure,' he shall have the right to judge of the crisis for himself, subject only to the limitation that his judgment of insecurity must be exercised in good faith, upon reasonable grounds or probable cause." "This rule does not require that there should be actual danger, or that the proofs should furnish the court, at the time of trial, with reasonable grounds to decide that there was actual danger, but it will be sufficient if at the trial, it appears that at the time of taking possession there was apparent danger, such as a reasonable man might in good faith act upon, or in other words, there should be reasonable grounds to believe there was danger, or that the mortgagee did not act without probable cause." SCOTT and SHELDEN, JJ., dissenting, said: "We think it enough that the mortgagee felt himself insecure, and that it is not necessary that in addition thereto there should have been probable cause for feeling himself insecure." The Supreme Court of Wisconsin, in Huebner v. Koebke, 42 Wis. 319, and in Cline v. Libby, 46 Wis. 123; s. c., 32 Am. Rep. 700, held, that "A clause in a chattel mortgage, providing that if the mortgagee shall at any time deem himself insecure, he may take possessien of and sell the property, vests in him an absolute discretion; and his right does not depend upon his having reasonable ground for deeming himself insecure." And in Evans v. Graham, 50 Wis. 450, the same court went fully as far. In Huggans v. Fryer, 1 Lans. 276, the Supreme Court of New York seem to recognize the same principles, and hold that the mortgagee's "testimony was competent upon the question whether he 'deemed himself unsafe' to allow the property to remain in mortgagor's possession." And in Smith v. Post, 1 Hun, 516, the Supreme Court of New York say: "The mortgage provided, that in case of default in payment, or in case the mortgagees should at any time deem themselves unsafe, they might take possession of the property and sell the same. Held, that this provision was for the benefit of the mortgagees, and authorized them to take possession when,, in their judgment, they deemed it best for the safety of their demands so to do, and that no proof was required to show that they considered themselves unsafe, as the legal presumption would be that such was the Barret v. Hart. fact, when possession was taken before the mortgage was due." See also section 431, and cases cited, of Jones Chattel Mortgages. We cannot agree with those who hold that the mortgagee has an "absolute discretion," and may act from the mere dictates of his own will; nor can we agree with those who hold that the mortgagee can act only on grounds that he can show to a court are reasonable. The mortgagee should act in good faith, and his mind and judgment should be controlled by facts arising after the making of the mortgage, and in regard to the condition of the property mortgaged. The judgment of the District Court is affirmed. Judgment affirmed. NOTE BY THE REPORTER. See Werner v. Bergman, 28 Kans. 60; s. c., 42 Am. Rep. 152, and note, 158. The latest authority on this subject is Allen v. Vose, 34 Hun, 57. That was the case of the mortgage of a mare, with the clause "if the mortgagee shall deem himself unsafe, etc. It was held that he had an absolute discretion, which did not depend upon reasonable grounds. The court said: The referee has held and decided that under the clause contained in the mortgage, that in case the said Arlon M. Vose shall deem himself unsafe it shall be lawful for him to take possession,' etc., the defendant must prove and establish to the satisfaction of the jury or referee that he deems himself unsafe, before he is justified in taking possession of the property, and whether he is actually insecure and unsafe does not rest in the mere whim, caprice, or arbitrary will of the mortgagee, but becomes a question of fact, to be heard and determined like other important questions of fact, and governed by the same rules; that in this case the evidence did not justify the defendant in deeming himself unsafe, and that consequently he had no right to take possession of the mare at the time he did. This question presents the important question in the case for review. The appellant relies upon Huggans v. Fryer, 1 Lans. 276; Roy v. Goings, 96 Ill. 361; s. c., 36 Am. Rep. 151; Farrell v. Hildreth, 38 Barb. 178; Hall ▾ Sampson, 35 N. Y. 274. "In the case of Huggans v. Fryer the mortgage was upon a yoke of oxen, and contained the clause that if the mortgagee deems himself unsafe it shall be lawful for him to take possession of the property and sell the same at public or private sale previous to the time mentioned for the payment of the debt.' In that case, the mortgagee, deeming himself unsafe, took possession of the property before the mortgage came due and sold the same without giving personal notice to the defendant. The question considered upon the appeal was whether or not the sale was illegal and void for want of personal notice to the defendant. It was held that the sale was valid. It does not appear from the case as reported that any evidence was given upon the question as to whether or not the plaintiff was unsafe when he took possession of the property, and that question does not appear to have been argued. The court, in commenting upon Barret v. Hart. the case, says: 'The taking possession of the property, and the advertisement of its sale was in strict conformity with the condition that when the mortgagee deemed it unsafe he could sell and apply the proceeds to the payment of the debt.' "In the case of Farrell v. Hildreth the action was for conversion of a wagon and heifer, which property the plaintiff claimed by virtue of a chattel mortgage executed to him by one John Farrell, containing the danger clause. The defendant, as sheriff, levied upon the property by virtue of an execution issued upon a judgment against John Farrell. The plaintiff demanded the property of the sheriff, which was refused, and the property was sold on the execution. The question raised upon the appeal in that case was whether or not at the time of the levy or demand by the plaintiff of the property the mortgagor had an interest in the property liable to be levied upon and sold on execution. The court held that where the mortgagor has retained no other interest in the property than an equity of redemption, such interest is not the subject of levy and sale, and that there was abundant ground for a feeling of insecurity on the part of the mortgagee. The sale was forbidden, and the property demanded; and the jury would have been warranted in finding that the mortgagee felt himself insecure and unsafe. The question as to whether or not it was necessary for the jury to so find does not appear to have been raised òr discussed. "In the case of Hall v. Sampson the action was for the conversion of a pianoforte, which was claimed by the plaintiff under a chattel mortgage containing the danger clause. The defendant, as sheriff, levied upon the same under an attachment, and the same was subsequently sold upon execution in the attachment suit. The mortgage covered a large amount of household furniture, embracing other articles besides the piano. At the time the piano was attached the mortgage was not due. Subsequently the plaintiff deemed himself insecure, and took possession of the mortgaged property except the piano. At this time he knew the piano had been attached, and his reason for not taking it into his possession with the other property was that it was at a distance of ten miles from his residence, and he had no convenient place to put it. The court heid that the execution of the mortgage vested the plaintiff with title subject to be defeated by the subsequent performance of the condition, that the mortgage specifically defined the circumstances under which the grantee should become entitled to the right of possession, and that this evinces the mutual intent of the parties that until vested in the mortgagee it should remain in the mortgagor. His possessory right was to terminate on the failure to pay the debt at the time named, or at such earlier time as might be fixed by the election of the mortgagee, if in good faith he should deem himself inse cure; that the mortgagor's interest terminated when the plaintiff, finding his debt insecure, exercised his right under the mortgage to treat the condition as broken; that his act in taking possession of the bulk of the property was an assertion of his claiming enforcement of the forfeiture. From that time he had the right of possession as well as the legal title, and the authority of the sheriff ended with the interest of the debtor. " · Roy v. Goings, supra, was decided in the Supreme Court of Illinois. The Barret v. Hart. rule as stated by that court is, that under a clause in a chattel mortgage, that if the mortgagee shall at any time before the debt becomes due feel himself unsafe or insecure, he shall have the right to take possession of the mortgaged property, the mortgagee has the right to determine the crisis for himself, subject only to the limitation that his judgment of insecurity must be exercised in good faith, upon reasonable grounds or probable cause. That this rule does not require that there should be actual danger, or that the proof should furnish the court at the time of the trial with reasonable grounds to decide that there was actual danger. But it will be sufficient if at the trial it appears that at the time of the taking of possession there was apparent danger, such that a reasonable man might in good faith act upon. That the feeling of insecurity has reference to such feeling as is produced by some subsequent cause, or some cause not in being when the mortgage was executed. In the case of Smith v. Post, 1 Hun, 516, the action was to recover property which had been levied upon by virtue of an execution, and which property had been sold by virtue of a chattel mortgage in favor of the defendant. In this case the General Term of the Third Department held that the provision in the mortgage that in case of default in payment, or in case the mortgagee should at any time deem himself unsafe, he might take possession of the property and sell the same, was for the benefit of the mortgagee, and authorized him to take possession when there was default, or when in his judgment he deemed it best for the safety of his demand. And no proof was required to show that he considered himself unsafe, as the legal presumption would be that such was the fact when possession was taken before it was due. Thomas Mort. 443, states the rule to be that where there is a clause in the mortgage which authorizes the mortgagee to take possession at any time when he may deem himself unsafe, the mortgagee may take the property away from the mortgagor at any time when he may think it best for his own interest, and if the power contained in the mortgage justifies such a course, he may sell the property and thus bar the equity of redemption even before the debt becomes due.' Jones, in his new edition, just published, on Chattel Mortgages, at section 431, says: A provision that the mortgagee may take possession whenever he shall deem himself unsafe is for his benefit, and authorizes him to take possession, when in his judgment he deems it best for his safety to do so; and upon his taking possession before default no proof is required to show that he considered himself uusafe, as the legal presumption is that such was the fact. He is made the sole judge of the happening of the contingency upon which he may take possession. It is immaterial whether his apprehensions of loss be well or ill fouuded. Being entitled to possession of the property for such cause, he may maintain an action for the possession of it against any one who detains it, or trover for the conversion of it. He may moreover take possession without making any previous demand for payment. Such a clause vests in the mortgagee an absolute discretion to take possession of property when he may deem himself insecure, and the exercise of this right does not depend upon the fact that he has reasonable ground for deeming himself inseNor is such a contract a hard and unconscionable one, especially as the cure. Barret v. Hart. right of possession passes with the legal title by force of the mortgage, in the absence of any agreement to the contrary. When the parties have made their own contract the courts will not set them aside and make a new one for them. Such a provision in a mortgage is a contract right, and therefore it cannot be impaired by subsequent legislation. If the mortgagor wishes to retain possession of the property until the mortgagee shall have reasonable grounds to deem himself insecure, he can insert, or have inserted, a stipulation to that effect in the mortgage; or if he wishes to go still further, and retain possession of the property until the mortgagee shall become in fact insecure, he can have a stipulation put into the mortgage to that effect. But if he chooses only to have inserted in the mortgage a clause that he shall have the right to possession of the property until the mortgagee shall deem himself insecure, then he can only retain the property until the mortgagee does in fact deem himself insecure; and he has no right to question the grounds upon which the mortgagee entertains such feelings of insecurity. He cannot say to the mortgagee, 'You are unreasonable; you have no right to feel insecure; there are in fact no grounds for such feeling of insecurity.' The only question at all material in such a case is whether the mortgagee does in fact so feel; and if the mortga gee claims that he has such a feeling, and afterward on the trial testifies that at the time he took possession of the property he had such a feeling, and if upon the facts of the case it is possible to all to believe that any person, how. ever timid and fearful he might be, might have had such a feeling, then it should be held that the mortgagee had a right to take possession of the prop erty. Under a clause authorizing the mortgagee to take possession whenever he should, deem himself insecure, he is entitled to exercise this right if he has good reason to think, and did think, that he had been overreached in regard to the value of the property.' We have thus briefly referred to the principal decisions in our own State and of Illinois, and have given the rule as stated by our recent elementary writers upon the question. There are numerous decisions in other States which we have examined. Whilst there is some conflict in the decisions we are of the opinion that the weight of authority is in accordance with the rule as stated by Jones." In Cassidy v. Janauschek, Pennsylvania Common Pleas, December 13, 1884, it was held that a contract of hiring which provides that an actress may be discharged if the manager is satisfied in good faith that the actress is incompetent, makes the manager the sole judge of the competency of the actress, and if the manager discharged the actress for that reason, he is not liable for error of judgment exercised in good faith, although the jury should believe that the actress was competent. The particular reason for discharge was the plaintiff's refusal to go on the stage in disguise as a member of the mob in the tragedy of Marie Antoinette. The court said: "In a business which depends so much upon the effect produced upon the audience, as that of play acting it seems reasonable that all the players should be subject to a call to assist in making a good presentment of the necessary tableaux. A good actress, moved by a proper spirit toward her manager, ought to have been ready and willing to do all in her power to contribute to the promotion of that success upon which both so |