Brasher v. Christophe

• Decision Date: 18 October 1887
• Citation: 10 Colo. 284,15 P. 403
• Court: Colorado Supreme Court
• Parties: BRASHER and others v. CHRISTOPHE.

15 P. 403

10 Colo. 284

BRASHER and others v. CHRISTOPHE.

Supreme Court of Colorado

October 18, 1887

Commissions' decision. Error to district court, Arapahoe county.

H C. Dillon, for plaintiff in error.

Browne & Putnam, for defendant in error.

MACON C.

The facts of this case are: 'In February, 1880, Christophe was keeping a boarding-house or tavern called the 'Balcom House,' in Denver, holding a lease on the premises from Hallack Bros., and on the nineteenth of that month assigned said lease, and sold the furniture in the house to James Bell and Alexander Lewis, for $2,500, $1,500 of which was paid down, and the notes of Bell and Lewis for $1,000 were given to secure which, the latter executed to Christophe a chattel mortgage upon the same furniture they had bought of him, in which they reserved the power to sell and dispose of the mortgaged property in this form: 'It is expressly understood and agreed by the party of the second part that the parties of the first part shall have the privilege of disposing of such furniture and chattels conveyed by this chattel mortgage as they shall see fit, for the purpose of purchasing other and better furniture and fittings to put in the aforesaid premises.' Afterwards, and before the maturity of any of the notes given to Christophe, Bell and Lewis executed four other chattel mortgages, the first to Brasher Bros., the second to Richmond Bros. & Farnsworth, the third to Richmond & Farnsworth, and the fourth to Fishel, Kohn & Wise, to secure an indebtedness in the aggregate to these several firms of about $3,600. Soon after the nineteenth of February, and before any of the last four mentioned mortgages were executed, Bell and Lewis had sold a large part of the furniture bought of Christophe and included in his mortgage, and replaced it with other articles of furniture, but how much in value, and what particular articles of the old furniture remained in the house when the last four mortgages, or any of them, were executed, is not shown with any degree of certainty; though the jury on the trial found as a fact that on the fifth of May, 1881, there remained in the house of such old furniture about $1,000 in value. On the fifth of May, 1881, the mortgagees, in the last four mortgages, foreclosed them by seizing and selling the property described therein, leaving nothing for Christophe. For this Christophe brought an action of trover against Brasher Bros., and Bell and Lewis. In this complaint is set out the mortgage in its legal effect, and also the property described therein; the fact of taking and conversion by the defendants, and the value of the property. The record shows that to the original complaint, Bell and Lewis filed a demurrer, and that afterwards an amended complaint was filed, after which Bell and Lewis made no further defense, and the case went against them by default. Brasher Bros. filed their answer, denying the validity of the alleged mortgage to Christophe; denied the identity of the goods described in the complaint with those mortgaged in the last four mortgages; and admitted the seizure and conversion of all the property, furniture, and fittings in the said Balcom House, then called and known as 'The Turf Exchange.'

The pleadings present two issues: First, the validity of the alleged mortgage to Christophe; and, second, the identity of the chattels described in the alleged mortgage to Christophe with those taken and converted by Brasher Bros. The case was tried to a jury, who rendered a verdict for plaintiffs in the sum of $1,334. Defendants moved for a new trial on the ground of error in law in the trial; that the verdict was contrary to the law and evidence; because the damages awarded by the jury were excessive; because of newly discovered evidence since the trial, and for that the court erred in entering judgment on the verdict, pending notice of a motion for a new trial. This motion was overruled, to which defendants excepted, and prayed an appeal, which was denied by the court, and to which an exception was reserved. Defendants are in this court on a writ of error, and have assigned twelve errors as ground for reversal of the judgment below, but abandoned the twelfth assignment. In the trial, Christophe introduced his mortgage in evidence over the objection of defendants, and defendants offered the last four mortgages which the court admitted, but limited their effect as evidence, and required defendants to show that they were executed to secure money due for better furniture and fittings for this Turf Exchange, holding that for any other purpose the mortgages should be deferred to that of the plaintiff. On the conclusion of the evidence, the court instructed the jury as follows:

' Gentlemen of the Jury: The first, and substantial, and material, issue in this case for you to determine from the evidence, is whether the defendants, commonly spoken of as Brasher Bros., being B. P. Brasher and L. B. Brasher, wrongfully took and converted to their own use certain property mentioned in the plaintiff's amended complaint, and which is referred to in this chattel mortgage, and contained in this schedule, and if you shall find that they did, then to find the value of such goods and chattels which you shall find they wrongfully converted. The case, to a certain extent, so far as the documentary portion here and the legality of these documents is concerned, is uncontradicted. On the nineteenth of February, 1881, it appears in evidence, without contradiction, that the plaintiff made a sale of certain goods and chattels in the Balcom House, in this city, to Bell and Lewis, for a certain sum in cash, and took a mortgage back for the sum of $1,000, three notes amounting in the aggregate to $1,000, and the mortgage upon the goods and chattels in said Balcom House to secure the payment of those notes. In that chattel mortgage is contained this clause: 'It is expressly understood and agreed by the party of the second part' (that is the plaintiff, Seraphin Christophe) 'that the parties of the first part' (this is Bell and Lewis) 'shall have the privilegegage, of disposing of such furniture and chattels, conveyed by this chattel mortgage, as they shall see fit, for the purpose of purchasing other and better furniture and fittings to put in the aforesaid premises.' It further appears that subsequently, and before the maturity of any of these notes, Bell and Lewis gave four other certain chattel mortgages to secure claims held against them by Brasher Bros., by Richmond & Farnsworth, by Richmond Bros. & Farnsworth, and by Fishel, Kohn & Wise, and gave a mortgage on certain other property of the defendants, Bell and Lewis, said property in those four other certain mortgages being described as being in the same house; and it is for you to say, from the evidence, whether the property described in those four other certain mortgages, given by Bell and Lewis, is the same identical property as the property described in the plaintiff's mortgage from Bell and Lewis. As to that you must depend on the evidence for your guidance, and not necessarily upon the fact that the property may be described in the same language, or the same general terms. As to the identity, then, of the property described in the first mortgage, and in these four other certain mortgages, you are to determine from the evidence whether it is the same property. If you shall find that it is the same property, or that any portion of it is the same property, then the court charges you, as a matter of law under this case, under the evidence in this case, that the security of these four parties, or four partnerships, by their four chattel mortgages, is not good against the first mortgage, unless these four mortgages, or some one or more of them, was given for the purpose of purchasing other and better furniture and fittings, to put in the aforesaid premises. The plaintiff gave to the defendants, Bell and Lewis, the privilege of disposing of the property as they should see fit; and the court holds that they might mortgage it, if the purpose of their mortgaging it was to secure other and better furniture and fixtures to put in the same hotel; but it could not be mortgaged for any other purpose; that is, the same property described in the plaintiff's mortgage could not be mortgaged for any other purpose than for the express purpose specified here, and be a good mortgage to defeat the first mortgage; but, if mortgaged for the purpose of getting other furniture and fittings for that hotel, for that express purpose in good faith, then the second mortgagee's security would prevail over the first mortgagee's security, if you shall find that fact from the evidence.

'Now, it further appears from the evidence, without contradiction, that some time about the first of May, 1881, the defendants the Brasher Bros., acting in concert with the other mortgagees under these subsequent mortgages, went and took possession of certain property in the Balcom House, which has been since known as 'The Turf Exchange,' as appears from the evidence under their several mortgages, and sold and disposed of the property which they took possession of. But it is for you to say from the evidence whether it taking possession of certain property in the Balcom House, or Turf Exchange, whether or not they took possession of any of the property which the plaintiff had a mortgage upon; the plaintiff in this respect must satisfy you by a preponderance of the evidence that these defendants, in concert with others who had mortgages, did take the property mentioned in the plaintiff's chattel mortgage, or some portion of it before the plaintiff is entitled to recover; and then, if you shall find that the defendants did take possession, and caused to be sold and

...