Phelan v. Brothers
| Decision Date | 03 June 1919 |
| Docket Number | Case Number: 9067 |
| Citation | 75 Okla. 49,181 P. 718,1919 OK 167 |
| Parties | PHELAN v. BARNHART BROS. & SPINDLER. |
| Court | Oklahoma Supreme Court |
¶0 1. Chattel Mortgages--Sale by Mortgagor--Oral Consent of Mortgagee--Evidence.
A chattel mortgage which provides that the property cannot be sold without the written consent of the mortgagee does not prevent the mortgagee from orally constituting the mortgagor his agent to sell the property, and where oral consent is relied upon as a defense in an action for the conversion of the mortgaged property, the evidence as to such consent must be clear, positive, and unequivocal.
2. Appeal and Error--Harmless Error--Instructions.
It is prejudicial error for the trial court to give an instruction covering an issue not made by the pleadings and the evidence in the cause, where such instruction tends to confuse the issues and is calculated to mislead the jury.
3. Same.
Where there is no evidence reasonably tending to establish a material issue submitted to the jury under instructions of the court, which the jury must have found in favor of the prevailing party, in order to have returned the verdict, the verdict will be set aside:
Error from District Court, Oklahoma County; John W. Hayson, Judge.
Action by J. R. Phelan against Barnhart Bros. & Spindler. Verdictand judgment for defendant, motion for new trial overruled, and plaintiff brings error. Reversed and remanded.
Rollin E. Gish, for plaintiff in error.
Fulton, Shirk & Danner, for defendant in error.
¶1 The plaintiff in error, J. R. Phelan, was the plaintiff in the trial court, and the defendant in error, Barnhart Bros. & Spindler, was the defendant below. The parties will be referred to hereafter as plaintiff and defendant. The plaintiff sued for the conversion of type and printing equipment upon which he held a chattel mortgage, which was duly filed for record. The mortgage had the usual written provisions against the mortgagor selling or disposing of the property without the written consent of the mortgagee. The plaintiff sought to recover from the defendant the sum of $ 200 on account of the alleged conversion of the mortgaged property by the defendant. Issue was joined, and trial was had before a jury. The Jury returned a verdict in favor of the defendant. Plaintiff filed his motion for a new trial in due time, and from the overruling of said motion an appeal was taken. The plaintiff has assigned as grounds for reversal error in giving instructions Nos. 8 and 9, which are as follows:
¶2 The above assignments of error will be considered as one, as the argument and authorities cited by the parties respectively cover both. It appears that no demurrer to the evidence was filed in the lower court, nor did the plaintiff move to have a verdict directed in his favor; therefore the only question for this court to consider is: Was there any evidence justifying submitting to the jury the instructions complained of? The defendant had sold to the mortgager new type amounting to a large sum, and had received as part payment thereon the old type covered by plaintiff's mortgage, and had taken a mortgage on the new type to secure the balance of the purchase money therefor.
¶3 We have gone carefully over the briefs tiled by counsel, and also the record in the case, and the only evidence we have been able to find which in any manner tends to show that the plaintiff authorized the mortgagor to dispose of the mortgaged property is found on page 70 of the case-made in the evidence of Halbert R. Stephens, the mortgagor, which is as follows:
¶4 The above, so far as we have been able to gather, is the entire evidence on that point. Nothing additional is pointed out by either the plaintiff or the defendant. In the answer filed by the defendant there is no allegation that the plaintiff had at any time authorized or consented to the sale of any of the mortgaged property by the mortgager, and in the evidence above quoted there is nothing showing that the plaintiff consented that any of the mortgaged property be sold. As far as is disclosed, the mortgager only informed the mortgagee that he was going to buy some new type, and that he had bought new type, not that he was going to sell the type mortgaged, or that he had sold the same. Where there is an entire lack of evidence to sustain the verdict, the same should be set aside. Howard v. Farrar, 28 Okla. 490, 114 P. 695; Gaar, Scott & Co. v. Rogers, 46 Okla. 67, 148 P. 161; Terry v. Creed, 28 Okla. 857, 115 P. 1022.
¶5 We should not lose sight of the fact that the purpose of a mortgage is to furnish security. Section 2755, Rev. Laws...
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