Chicago Lumber Co. v. Fisher
| Decision Date | 21 October 1885 |
| Citation | 25 N.W. 340,18 Neb. 334 |
| Parties | CHICAGO LUMBER COMPANY, PLAINTIFF IN ERROR, v. GEORGE E. FISHER, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before POUND, J.
AFFIRMED.
Charles E. Magoon, for plaintiff in error.
R. D Stearns, for defendant in error.
This was an action in replevin by which defendant in error procured the possession of certain property on which he held a chattel mortgage.
Defendant in that action, plaintiff in error here, seeks a review by proceedings in error. The property, described in the mortgage at length, consisted of a stock of furniture, upholstering goods, etc. The mortgage was given for the purpose of securing the payment of a promissory note for the sum of one hundred and fifty dollars, which was given to cover rent due and to become due for the store building in which the furniture was kept. Plaintiff in error is creditor of the mortgagors and caused an execution to be levied upon the property, when this action was instituted for its possession.
The first contention of plaintiff in error is, that at the time of the execution of the mortgage it was agreed that the mortgagors might continue to sell, in the usual course of trade, the mortgaged property, and that therefore the mortgage was fraudulent and void as to creditors.
The mortgage itself contains no provision giving this right, and we think the testimony fails to show any agreement of the kind at the time of the execution and delivery of the instrument. However that may be, the most that can be said as to such an agreement being made is, that there was a conflict in the testimony upon that point and the question was one for the jury to decide. Johnson v. Phifer, 6 Neb. 401.
The trial court instructed the jury that "a chattel mortgage of a stock of goods used in the way of retail trade, and where the mortgagor is allowed to continue in the possession of the property and to sell the goods in the usual course of trade, is in law fraudulent and void, as against the creditors of the mortgagor, no matter whether the parties intended any actual fraud or not." By this and other instructions the question here presented was fully submitted to the jury and they must have found that no such an agreement was made.
The testimony upon the question as to whether the mortgagors continued selling the goods after the execution of the mortgage is very meager, with the exception that a few articles of no great value were by the consent of the mortgagee transferred to some one in payment of a debt.
The court, among other instructions gave the following: "You are instructed that the mere fact (if such it be) that Fisher left the goods in the possession of the firm and knew that they were selling small parts of the same, will not of itself render the mortgage fraudulent and void as to defendants, but if you find that there was an agreement between the firm and plaintiff that they were to sell the goods the same as before and apply the proceeds to their own use this would render the mortgage void." The giving of this instruction is alleged as error.
In view of the testimony in the case we cannot say there was error in giving it. It is not the specific sale of a few articles of inconsiderable value, with the consent of the mortgagee, that makes a mortgage fraudulent, but where such sales are made in the usual course of trade, where there is a Collins & McElroy v Myers, 16 Ohio 547. The jury might well find that the sales made, if any, were not such as would disturb the lien of the mortgage, and that finding could not, under the rule stated in Johnson v. Phifer, be molested.
It is claimed that there is an irreconcilable conflict between instruction number four, given upon the request of defendant in error, and that numbered eight of those given upon the request of plaintiff in error. They are as follows:
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