Louden v. Vinton

• Decision Date: 18 February 1896
• Citation: 108 Mich. 313,66 N.W. 222
• Court: Michigan Supreme Court
• Parties: LOUDEN v. VINTON.

66 N.W. 222

108 Mich. 313

LOUDEN v. VINTON.

Supreme Court of Michigan

February 18, 1896

Error to circuit court, Grand Traverse county; Roscoe L. Corbett Judge.

Action by Clara Louden against Medad Vinton. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Dodge & Covell, for appellant.

Foster & Crotser and Pratt & Davis, for appellee.

MONTGOMERY J.

Defendant is sheriff of Grand Traverse county, and as such levied two attachments upon a stock of hardware as the property of one Antony Pohoral, at the suits, respectively, of Buhl Sons &amp Co. and the Pritzlaff Hardware Company. These suits proceeded to a judgment, and executions were issued, and defendant acting as sheriff, made a sale of the property to Buhl Sons &amp Co. The plaintiff claims under a chattel mortgage made and signed on the 1st day of November, and filed on November 17, 1894, both dates being earlier than the attachment. The mortgage was made without the intervention of plaintiff, and in pursuance to an agreement on the part of Pohoral to secure her from indebtedness owing to her, and indebtedness against her on account of certain obligations which she had incurred as surety. It does not very clearly appear as to just when the plaintiff learned that the mortgage had been executed, although it is clear from her testimony that it was before the attachment, and she also testified that she accepted it; and it would seem that possession was taken on her behalf before the levy. The mortgage was given for $3,500, and, as Pohoral testifies, was intended to cover his indebtedness to plaintiff, amounting to $1,140, and to secure her against liability on a note given by her for Pohoral's debt, to one James A. Venn, of $700 and interest, and to indemnify her against liability on a note of $1,106.30 given to Rathburn Sons & Co., also as security for Pohoral. The contention of defendant, before the trial court, was: First, that the mortgage was fraudulent in fact; second, that the fact that the mortgage was given for a larger amount than was actually owing made it fraudulent in law; third, that the mortgage was invalid for want of sufficient description; fourth, that it was invalid as to creditors, because it covered after-acquired goods, and permitted sales from the stock. In addition to these main contentions, it is insisted that error was committed in the admission of testimony, and in the refusal to charge as requested. There are a large number of assignments of error, which we find it unnecessary to refer to in detail, but think it better to deal with the questions presented substantially in the order adopted in appellant's brief.

The first five assignments of error relate to rulings upon testimony offered to show the identity of the goods levied upon by the defendant with those seized under the writ of replevin in this case. We discover no error in these rulings. The proof is so clear as to leave no room for question about the facts.

The fifth assignment relates to the ruling of the circuit judge admitting the mortgage in evidence, the objection being that there had not been a delivery and acceptance by the plaintiff. There was testimony, however, that plaintiff was informed of the execution and filing of the mortgage after it was filed, and that, through her attorney, she authorized a Mr. Huellmantel to take possession of the stock of goods in her interest, and that he was actually in possession when the attachment was levied; and plaintiff further testified that she thought the mortgage and notes were brought to her before the levy was made. This constituted a sufficient acceptance. Stress is laid upon testimony of the plaintiff, given in one part of her examination, in answer to the question, "whether you are still satisfied with what your attorney did for you in taking that mortgage of $3,500 for you on that stock of goods," as follows, "Well, I am satisfied if I get my pay, and not before." This did not contradict her testimony that she, with knowledge of the mortgage, gave her attorneys authority to take possession of the stock. A further objection to the admissibility of the mortgage in evidence was that it referred to an accompanying note, and this note was not offered with it or proven before the offer of the mortgage was made. We think this objection to the introduction of the mortgage in evidence was not good, at the time. It, at best, only went to the order of proof; and, while the defendant had the right to demand the production of the note or have its absence accounted for, he seems not to have taken this course, but the plaintiff was subsequently interrogated by him about the note, and neither party offered it in evidence. See Hill v. Merriman (Wis.) 40 N.W. 399. It is further contended that the mortgage should not have been received, for the reason that no proof had been made connecting it with the subject-matter in the cause, and it is claimed that no such proof was afterwards made; but we think that there is abundant evidence making the connection, and do not deem it profitable to set it out at length in this opinion.

It is next asserted that the mortgage is too uncertain to be valid as against creditors. The mortgage, after reciting that it is made between Antony Pohoral, of the first part, and Clara Louden, of the second part, witnesseth that, whereas said party of the first part is indebted to said Clara Louden in the sum of $3,500, and whereas said party of the first part desires to secure to said first party the payment of said sum of money, now, therefore, in consideration of above sum of money to him paid by the party of the second part, etc., does grant,...