Knollin v. Jones

• Citation: 7 Idaho 466,63 P. 638
• Parties: KNOLLIN v. JONES, SHERIFF
• Decision Date: 31 December 1900
• Court: United States State Supreme Court of Idaho

63 P. 638

7 Idaho 466

KNOLLIN v. JONES, SHERIFF

Supreme Court of Idaho

December 31, 1900

NONSUIT-CONSENT OF MORTGAGEE TO SALE OF MORTGAGED CHATTELS BY MORTGAGOR-TITLE OF PURCHASER.-A mortgagee who consents to a sale being made of the mortgaged chattels by the mortgagor waives the lien of the mortgage as to such portions of the mortgaged property as the mortgagor may sell under such consent, and the purchaser takes title free of the mortgage lien.

SAME-EVIDENCE.-Motion for nonsuit is properly denied where the evidence shows that the plaintiff, a purchaser of the mortgaged chattels, bought the property in controversy from the mortgagor with the consent of the mortgagee.

VERDICT-CONTINUING TRANSACTION.-Several mortgages were given by B. & L. to E. S B. Co. on different bands of sheep; the mortgagee consented in writing that the mortgagors sell the mortgaged property in lots to pay the mortgage debts. The mortgagors did, at various and sundry times, sell portions of the mortgaged chattels and accounted to the mortgagee for the proceeds of such sales; later, another mortgage was given on the remnant left out of the said bands of sheep, to the original mortgagee, by the mortgagors, to secure the balance due on the original mortgage debts, with a small advance; later, the mortgagors sold a portion of the sheep to plaintiff, and after that the mortgagee caused the sheriff to seize the sheep sold to plaintiff under the last mortgage; plaintiff sued to recover possession of the sheep so seized by the sheriff. On the trial letters were admitted in evidence over the objections of the defendants, in which the mortgagee advised and urged the mortgagors to sell all their sheep to meet their obligations. No showing was made that the mortgagee countermanded or recalled its consent to the two sales of said sheep by the mortgagors, and the evidence all tended to show, as did defendants' answer, that the various mortgages and transactions thereunder were treated by the parties as a continuing transaction. A letter from the mortgagee to the mortgagors was also introduced in evidence tending to show a willingness to sales by the mortgagors. Held, that all of the letters were properly admitted in evidence, and that the evidence supported the verdict.

INSTRUCTIONS TO JURY.-Erroneous instructions that are favorable, not prejudicial, to the appellant, will not authorize a reversal or the granting of a new trial. A party who requests an instruction, which the court gives, but which conflicts with an instruction already given by the court will not be heard on appeal to complain that the two instructions are inconsistent.

MOTION FOR NEW TRIAL-CUMULATIVE EVIDENCE.-A motion for a new trial upon the ground of newly discovered evidence, is properly denied where such evidence is cumulative and could, with proper diligence, have been produced at the trial.

JURY-CHALLENGES.-A new trial should not be granted upon the ground that an incompetent juror was drawn upon the panel, where the record shows that the complaining party accepted the trial jury without exhausting his peremptory challenges.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Affirmed, with costs of appeal to the respondent.

W. C. Howie, George M. Parsons and S. B. Kingsbury, for Appellants.

It is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law as laid down by the court. (State v. Wright, 53 Me. 329; Brown v. McAllister, 39 Cal. 575; People v. Anderson, 44 Cal. 65; McCrury v. Everding, 44 Cal. 296.) The instructions of the court upon this subject were conflicting and therefore erroneous. (State v. Webb, 6 Idaho 428, 55 P. 892, 894.) Not only did plaintiffs have notice of the existence of the mortgage at the time of the making of the contract of sale, and not only did they require a release of it on delivery, and as a condition of further payment, and not only have they paid nothing but the earnest money, but it is also undisputed that as early as April 26th, and as soon as Evans-Snider-Buel Company knew of the transaction they informed plaintiffs of their rights, of their lien and of the conditions under which they would release the property and ratify the sale. After such notice plaintiffs could not become bona fide purchasers, and they could in any event "be protected as a bona fide purchaser only to the extent of payments made before such notice as should have prevented them from further payments." (Jones on Chattel Mortgages, 4 ed., secs. 313, 454-457; Knobl v. Dunn, 34 Mich. 360.) "The mortgagee's consent to a sale of a portion of the mortgaged property does not infer his consent to the whole of it." (Jones on Chattel Morgages, sec. 457, p. 521; Riley v. Conner, 79 Mich. 497, 44 N.W. 1040.)

Charles F. Neal, Lyttleton Price and W. E. Borah, for Respondents.

A mortgagor may make a valid sale of the mortgaged property with the mortgagee's oral consent. Although a sale of the mortgaged property by the mortgagor, without the consent, in writing of the mortgagee, be prohibited by statute, if the mortgagee consent verbally to a sale, such sale is sufficient to pass title to the purchaser in possession. (Jones on Chattel Mortgages, sec. 456.) Authority in the mortgagor to sell mortgaged property may be inferred. Such authority depends upon the intent of the parties. This intent is a question of fact for the jury. (Jones on Chattel Mortgages, secs. 456, 459; Frick v. Western Star Milling Co., 51 Kan. 370, 32 P. 1103; Platt v. Maynard, 116 Mass. 388; Stafford v. Whitcomb, 8 Allen, 518; 2 Cobbey on Chattel Mortgages, sec. 637; Orton v. Orton, 7 Ore. 478, 33 Am. Rep. 717; Littlejohn v. Pearson, 23 Neb. 192, 36 N.W. 477; Gage v. Whittier, 17 N.H. 312; Roberts v. Crawford, 54 N.H. 532; Hangen v. Hachemister, 114 N.Y. 566, 11 Am. St. Rep. 691, 21 N.E. 1046, 5 L. R. A. 137; Wilson v. Voight, 9 Colo. 614, 13 P. 726; Aiken v. Pascall, 19 Ore. 493, 24 P. 1039; Southard v. Beemer, 72 N.Y. 433; Brackett v. Harvey, 92 N.Y. 214; Brown v. Barber, 47 Kan. 527, 28 P. 184.) The verdict is not uncertain; the number of sheep and the value were agreed upon. Besides, such objections as are made to the verdict at this time cannot be considered under the former decisions of this court. (Blackfoot Co. v. Delamue, 3 Idaho 291, 29 P. 97.) Defendant cannot be heard to complain that an instruction given at his instance conflicts with those given for plaintiff when such conflict constitutes an error in his favor. (Alexander v. Clark, 83 Mo. 481; Flowers v. Helm, 29 Mo. 324; Schmitz v. St. Louis etc. Co., 119 Mo. 256, 24 S.W. 472 23 L. R. A. 256; Williams v. Southern Pacific R. Co., 110 Cal. 457, 42 P. 974; Dennison v. Chapman, 105 Cal. 447, 39 P. 61; Sierra V. Co. v. Baker, 70 Cal. 572, 8 P. 310, 11 P. 654.) Errors in instructions which favor the appellant are not such errors as will cause the case to be reversed. (People v. Turcott, 65 Cal. 126, 3 P. 461; People v. Ah Luck, 62 Cal. 503; People v. Smith, 59 Cal. 601; People v. Velarde, 59 Cal. 464; Estate of Gharky, 57 Cal. 280; Dennison v. Chapman, 105 Cal. 447, 39 P. 61; People v. Lon Yeck, 123 Cal. 246, 55 P. 984; Fort Scott Co. v. Fortney, 51 Kan. 287, 32 P. 904.) In passing upon the instructions, all the instructions must be taken together, and if they, as a whole, present the law fairly, that is sufficient, and "no proper interpretation of the meaning of the court can be made on detached or isolated portions." (Ellis v. Tone, 58 Cal. 297; People v. Doyell, 48 Cal. 85; People v. Nelson, 56 Cal. 77; People v. Bernard, 2 Idaho 193, 10 P. 30.) It is contended that we are not entitled to recover interest. Our understanding is that our measure of damages, in case the sheep could not be returned, was the value at the time of the taking, with interest. (Cornwall v. Mix, 3 Idaho 687, 34 P. 893; Sebree v. Smith, 2 Idaho 357, 359, 16 P. 915; Werner v. Graley, 54 Kan. 383, 38 P. 482.) The affidavits upon motion for new trial do not disclose newly discovered evidence, neither is diligence shown in securing the evidence set forth or foreshadowed in the affidavits. It is also cumulative and most of it in the nature of impeaching evidence. To support a motion on the ground of surprise, it must be shown that due diligence has been used in preparing for the trial upon every material question of fact and besides, the party must, at the time of the surprise, make known that fact and ask for a continuance. (Turner v. Morrison, 11 Cal. 21; Heath v. Scott, 65 Cal. 548, 4 P. 557; Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058; Ferrer v. Company, 47 Cal. 430; Pincus v. Brewing Co., 18 Wash. 108, 50 P. 930; People v. McCurdy, 68 Cal. 576, 10 P. 207; Stoaks v. Munroe, 36 Cal. 309; Knuffke v. Knuffke, 8 Kan. App. 857, 56 P. 326; Klopenstine v. Hays, 20 Utah 45, 57 P. 712; People v. Superior Court, 10 Wend. 285; Alabama Co. v. Johnson, 123 Ala. 667, 26 South, 160.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

The respondent commenced this action to recover from the appellants the possession of seven thousand four hundred and forty-one head of sheep and damages for their retention. Appellants answered, alleging the following facts: That the appellant L. C. Jones, sheriff of Lincoln county, as agent for the appellant the Evans-Snider-Buel Company, seized said sheep, same being known as "Boyd & Litts' sheep." That said sheep were the property of, owned, and possessed by Boyd & Litts, a copartnership composed of Frank W. Boyd and G. W. Litts, subject to certain mortgage liens of the appellant, the Evans-Snider-Buel Company. That on October 27, 1898, said Boyd & Litts executed to appellants the Evans-Snider-Buel Company a mortgage on said sheep and other sheep to secure an...