McDonald v. Norton

• Decision Date: 18 October 1887
• Citation: 72 Iowa 652,34 N.W. 458
• Parties: MCDONALD v. NORTON.
• Court: Iowa Supreme Court

72 Iowa 652

34 N.W. 458

MCDONALD

v.NORTON.

Supreme Court of Iowa.

October 18, 1887.

Appeal from superior court, Creston.

This is an action for the possession of a colt, or for the value thereof. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.John A. Patterson and J. H. Coppenheffer, for appellant.

D. A. Porter, for appellee.

ROTHROCK, J.

The plaintiff claimed to be the owner of the colt, by virtue of a chattel mortgage executed by one Chavis. It is charged in the petition, in substance, that the defendant bought the colt of Chavis without plaintiff's knowledge, and that the defendant's purchase of the property, and his refusal to deliver the same to the plaintiff, and “disposing and concealing the same,” was wrongful and malicious; thereby preventing plaintiff from obtaining possession of said property, and foreclosing his mortgage on the same. The value of the colt is alleged to be $50, and judgment is demanded for $100 vindictive damages.

The evidence tended to show that the plaintiff attempted to foreclose his mortgage, and when the officer called on the defendant for the colt the defendant refused to tell him where the colt was, and defendant's son and son-in-law in some way became apprised of the officer's demand for the colt, and that they removed the same from a field, so that the officer did not get possession of it. Chavis, the mortgagor, being present, pointed out another colt as the one which was mortgaged, and which the officer took. The one taken proved to be a colt actually owned by the defendant. There was no direct evidence that the defendant was a party to this deception upon the officer.

The court instructed the jury upon the question of damages as follows: “You are instructed that if you find that the action of defendant, in purchasing, selling, and concealing said mortgaged property, was wrongful, criminal, mischievous, malice may be inferred from the circumstances attending the act; and, if you find such acts or circumstances were designed to injure plaintiff, then you are bound to infer malice, as every one is presumed to intend the necessary consequences which follow from his acts.” This instruction is erroneous. We know of no statute making the purchaser of mortgaged chattels a criminal. By section 3895 of the Code it is a criminal act for the mortgagor to dispose of the property mortgaged; and how the purchase of the property was a malicious act is more than we can...