Love v. Putnam

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

41 Neb. 86

59 N.W. 691

LOVE

v.PUTNAM.

Supreme Court of Nebraska.

June 6, 1894.

Syllabus by the Court.

1. A description in a chattel mortgage which suggests inquiry by the aid of which a party will be able to ascertain the location of property and to otherwise identify it is sufficient.

2. The description in the mortgage under which one party claimed in this case held sufficient to create a lien on the property described in favor of the mortgagee or his assigns, and the evidence sufficient to warrant a finding that the party who afterwards purchased the property had actual notice of the lien created by the mortgage.

3. Instructions to a jury should be considered together and as a whole, and their meaning and effect determined from their construction when so considered, and not by selecting and referring to detached paragraphs or portions alone; and, when, thus weighed, they are found to be correct, no error can be predicated upon the action of the court in giving them.

4. Instructions given and refused by the court examined, and held no error in either the giving or refusing.

Error to district court, Dodge county; Post, Judge.

Action by Leverett B. Putnam against J. W. Love. Judgment for plaintiff, and defendant brings error. Affirmed.E. F. Gray, for plaintiff in error.

Frick, Dolezal & Stinson, for defendant in error.

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 words and figures following, to wit: “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, Aug. 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 10 per cent. per annum, payable annually from date until paid. Address city. N. L. Hughes.’ 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 (130) tons of hay in stack on the east 1/2 of the N. W. 1/4 of Sec. 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 mortgaged 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 6 miles further east, in ...