Plano Mfg. Co. v. Griffith
| Decision Date | 07 September 1888 |
| Parties | PLANO MANUFACTURING CO. v. GRIFFITH |
| Court | Iowa Supreme Court |
Decided May, 1888
Appeal from Wright District Court.--HON. D. D. MIRACLE, Judge.
THE defendant, who is a constable, levied an execution in favor of Minor & Jones and against one Shaver, upon a harvester and binder. Plaintiff brought this action to recover the value of the machine under a chattel mortgage executed by Shaver to plaintiff. There was a trial by jury, and a verdict and judgment for defendant. Plaintiff appeals.
REVERSED.
Weber & Rogers and R. H. Whipple, for appellant.
Nagle & Birdsall, for appellee.
I.
The mortgage upon which the plaintiff relied was indefinite in its description. It described the mortgaged property as "one six 1-2 foot cut Plano harvester and binder." It contained no other words of description. That this description was insufficient to charge third persons with constructive notice of the mortgage there can be no question. See Hayes v. Wilcox, 61 Iowa 732, 17 N.W. 110; Rhutasel v. Stephens, 68 Iowa 627, 27 N.W 786; Ormsby v. Nolan, 69 Iowa 130, 28 N.W. 569; and many other cases in this court. In all these cases the question arose between the mortgagee and persons who acquired rights from the mortgagor as purchasers, or attaching or execution creditors, and it was held that the mortgagee could not by parol evidence add to the mortgage by showing what property was intended to be included therein. It has also been held that this rule excluding parol evidence has no application, and that such a mortgage is not void for indefiniteness, as against the mortgagor or his attaching creditory having actual notice of the mortgage and of the property claimed under it. Clapp v. Trobridge, 74 Iowa 550, 38 N.W. 411. The plaintiff in this case introduced parol evidence which tended to show that long before the execution was levied one of the members of the firm of Minor & Jones had actual notice that promissory notes were taken of Shaver by the plaintiff for the harvester and binder, and that he had given the plaintiff a mortgage on the same to secure the payment of the notes. Other evidence was introduced by plaintiff, which tended to identify the machine levied upon by the defendant as the same one sold by the plaintiff to Shaver. Thereupon the plaintiff offered the mortgage in evidence. The defendant objected upon the ground, in substance, that the mortgage was void for want of a sufficient description of the property. The objection was sustained. Thereupon the defendant requested the court to instruct the jury to return a verdict in his favor, which was done.
I. Under the rule announced in Clapp v. Trowbridge supra, the exclusion of the mortgage as evidence was erroneous. The cited case is...
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