Love v. Putnam

• Decision Date: 06 June 1894
• Docket Number: 4831
• Citation: 59 N.W. 691,41 Neb. 86
• Parties: JAMES W. LOVE v. LEVERETT B. PUTNAM
• Court: Nebraska Supreme Court

59 N.W. 691

41 Neb. 86

JAMES W. LOVE v. LEVERETT B. PUTNAM

No. 4831

Supreme Court of Nebraska

June 6, 1894

ERROR from the district court of Dodge county. Tried below before POST, J.

AFFIRMED.

E. F Gray, for plaintiff in error.

Frick Dolezal & Stinson, contra.

HARRISON J. POST, J., not sitting.

OPINION

HARRISON, J.

This is an action instituted in the district court of Dodge county by the defendant in error against plaintiff in error to recover damages for the alleged conversion of some hay by plaintiff in error which it is claimed by defendant in error belonged to him. The petition was in the words and figures following:

"The plaintiff complains of the above named defendant and alleges that on the 8th day of August, 1887, one N. L. Hughes made and delivered his certain promissory note in writing to I. B. Hickok in words and figures following, to-wit:

"'$ 167. FREMONT, NEBRASKA, August 8, 1887.

"'Sixty days after date we jointly and severally promise to pay to the order of I. B. Hickok one hundred and sixty-seven no/100 dollars, for value received, with interest at ten per cent per annum, payable annually, from date until paid. N. L. HUGHES.

"'Address: City.'

"That to secure the payment of said note said N. L. Hughes, on said 8th day of August, 1887, made and delivered to said I. B. Hickok a chattel mortgage in writing, duly signed by said N. L. Hughes, and thereby conveyed to said I. B. Hickok, as security for said note, the following described goods and chattels, to-wit: One hundred thirty tons of hay in stack on the east half of northwest quarter of section 30, township 18, range 6, in Dodge county, Nebraska; that on the 8th day of August, 1887, at 5 o'clock and 55 minutes P. M. said mortgage was duly filed for record in the office of the county clerk of said Dodge county; that on or about the 1st day of October, 1887, said I. B. Hickok, for a valuable consideration, and before said note and mortgage became due, did in the usual course of business assign said note, with the moneys due thereon, to this plaintiff, and did at the same time deliver said note and mortgage to this plaintiff, and said plaintiff thereby became, and at the times hereinafter stated was, and now is, the owner of said note and mortgage; that no part of said note has been paid except the sum of $ 8.56, paid on the 30th day of August, 1888; that on or about the day of , 1888, and before the commencement of this action, and while plaintiff was the owner of said note and mortgage and the special owner of the 130 tons of hay above described and entitled to the immediate possession of said property of the value of $ 260, said defendant took possession of 100 tons of said hay and unlawfully and wrongfully converted the same to his own use, to the damage of the plaintiff $ 200. Wherefore the plaintiff prays judgment against said defendant for the sum of $ 200, with costs of suit."

To this the plaintiff in error filed the following answer: "The defendant, for answer to the plaintiff's petition herein, admits that N. L. Hughes executed and delivered the note mentioned in said petition to I. B. Hickok, and admits that N. L. Hughes executed the mortgage mentioned in the petition and that it was filed as stated in the petition; but defendant denies that said mortgage was in the terms stated in said petition, or conveyed 130 tons of hay, or conveyed any hay, and defendant denies each and every allegation in said petition not above expressly admitted;" and on a trial of the issues in the case to the court and a jury a verdict was returned for defendant in error in the sum of $ 150. Motion for a new trial was filed by the unsuccessful party, J. W. Love, argued, submitted, and overruled, and judgment rendered, on the verdict, for Putnam. To reverse this judgment the plaintiff in error has prosecuted a petition in error to this court.

The first error which is argued by counsel for plaintiff in his brief is that the description of the property contained in the chattel mortgage executed by Hughes to Hickok, and sold by him to Putnam, was insufficient and indefinite, and did not pass any title to the hay in question to Hickok or Putnam, and if it did, was not sufficient to be constructive notice to him of the mortgaging of the hay or the lien created thereby, or to put him upon inquiry regarding the title before he purchased it, and in this connection that the court erred in allowing Hughes to answer the following question over the objection of plaintiff in error: "Mr Hughes, you may state whether the hay described in the mortgage, Exhibit B, is the hay you mortgaged to Mr. Hickok," the objection of the plaintiff in error being that the question was "incompetent, irrelevant, immaterial, and seeking to vary the terms of a written instrument, and as seeking to aid a defective and indefinite description in the mortgage by parol testimony, and to substitute parol testimony as a description of the property for that in writing." The record shows that at the time of this objection the plaintiff below offered to prove that "the description in this mortgage is defective; that is, there was a mistake made in describing the range on which the hay was located--the hay is described as being upon section 30, township 18, range 6, when it ought to have been section 30, township 18, range 7 east;" and further offers to prove that the Love farm mentioned in the mortgage was the Love that is defendant in this action, and that he had no other farm at that time in section 30, township 18, range 6, and did own the farm six miles further east in section 30, township 18, range 7; and the above objection, being renewed to the offer, was overruled and the evidence received, to which exception was taken by attorney for Mr. Love. The above assignments of error all have reference to and depend upon the determination of the sufficiency or insufficiency of the description contained in the mortgage. The description of the property in the mortgage was as follows: "One hundred thirty tons of hay now in stack upon east half northwest quarter of section 30, town 18, range 6; also, one sorrel horse, thirteen years old; one bay horse, twelve years old; one spring wagon, three spring; one set of double...