Stephens v. Pence

• Decision Date: 11 June 1881
• Citation: 9 N.W. 215,56 Iowa 257
• Parties: STEPHENS v. PENCE
• Court: Iowa Supreme Court

9 N.W. 215

56 Iowa 257

STEPHENS v. PENCE

Supreme Court of Iowa, Des Moines

June 11, 1881

Appeal from Linn District Court.

ACTION to recover the possession of three barrels of kerosene oil and sixty-eight barrels of salt, to which it was alleged in the petition the plaintiff was entitled under a chattel mortgage executed by Keyes & Parkhurst, and which the defendant had wrongfully taken into his possession. The defendant is a constable, and justified the taking under an execution against Keyes & Parkhurst. Trial to the court. Judgment for the plaintiff, and defendant appeals.

AFFIRMED.

G. W Wilson, for appellant.

Jas. D Giffin, for appellee.

OPINION

SEEVERS, J.

I. Conceding the evidence is all before us, which, however, is denied in an amended abstract, the errors will be briefly considered. The first is that the mortgage was not introduced in evidence, and, therefore, it is insisted the plaintiff failed to show he was entitled to the possession of the property in controversy. The abstract states: "Plaintiff's counsel offers in evidence the mortgage attached to plaintiff's petition." To this no objection was made. It is evident the mortgage was regarded by the court below as having been introduced as evidence, and rightly so, because no objection was made when it was offered. The point now insisted on is without merit, and cannot be urged for the first time in this court.

II. It is assigned as error that the property in controversy was not included in or covered by the mortgage. The following is the description of the property contained in the mortgage. "Our entire stock of goods, wares and merchandise, consisting of groceries, queensware, confectioneries, feed, provisions and all articles of goods, wares and merchandise now in stock, and that may hereafter be added to said stock, to stock up and replenish the same, in the store-room now occupied by us as a grocery store, being No. 21, on lot 8, block 13, Marion, Iowa."

It is said neither kerosene or salt are groceries, queensware, confectioneries, feed, or provisions. Conceding this, kerosene and salt, clearly, we think, are included in the language "All other articles of goods, wares and merchandise now in stock, and that may hereafter be added to stock up and replenish the same," for, certainly, kerosene and salt are goods and merchandise.

The salt was in a shed on the premises used in connection with the store room, for the...