To refuse to nonsuit for any of the reasons suggested at the circuit, was not error. The chattel mortgage of the plaintiffs, it was conceded, covered the property in controversy; and the evidence tended strongly to show the mortgagees in possession, when the defendants assumed to take it under the attachment. If the mortgagees had reduced the property to their possession, as the instrument empowered them to do, at the time the attachment was levied, Marrion had no interest in it subject to levy and sale.
It is only when default has not occurred and the mortgagor is in possession, and is entitled to the possession for a definite period, that the chattels mortgaged may be seized upon execution against the mortgagor, or that the latter has any leviable interest therein.
(Mattison v. Baucus, 1 Comst., 295; Hull v. Carnley, 1 Kern., 501.) Whether the mortgagor or mortgagees were in possession when the defendants seized the property, was a question for the jury, and instead of nonsuiting the plaintiffs, it would have been error in the judge at the circuit to have withheld the question from the jury. If there be really any difficulty in the case, it arises from the terms of the mortgage of the 15th May. But I am of the opinion that there is no insuperable difficulty here.
The writing describes the property mortgaged as "eleven thousand feet of pine lumber, of various thicknesses, now in the shop occupied by the said Marrion, in Leonard Buckland's building, located on Minerva alley, in the city of Rochester." There was no such quantity of lumber in Marrion's shop at the time the mortgage was executed. The defendants' evidence showed that there was in the shop not probably to exceed one-fifth of that quantity.
There can be no doubt, from the extrinsic evidence, that the lumber intended to be mortgaged was the parcel purchased by Marrion from Parsons, on the 10th May, part delivery of which had been made at Marrion's shop; and if the description in the instrument had been merely "eleven thousand feet of pine lumber of various thicknesses," and parol proof must necessarily have been resorted to to identify the subject of the mortgage, the judge might properly have instructed the jury *Page 40 that it was the lumber bought from Parsons which the mortgage was intended to and did cover.
But the instrument describes the property mortgaged as being in the shop of Marrion, at the date of its execution; and it is urged that, reading the description together, there is no latent ambiguity to be explained by extrinsic proof. This would be so, if the parol evidence in the case did not create an ambiguity. When it is shown that but a small quantity of lumber was in Marrion's shop, not one-fifth of the quantity mortgaged, an ambiguity arises explainable by parol.
A latent ambiguity created by parol proof is open to parol explanation. This in no sense infringes upon the rule that a written contract cannot be varied or altered by parol, but that such writing is to be deemed to express the intent of the parties. Marrion assumed to transfer 11,000 feet of lumber, which is stated to be in his shop on Minerva alley. It is made to appear that there was not at the time 2,000 feet in such shop.
It is clear, therefore, that he intended to mortgage lumber other than that which was actually in the shop when the instrument was executed. The mortgage was of a specific quantity of lumber not in the place where the instrument described it to be. Thus an ambiguity is created which it is admissible to explain by extrinsic evidence.
The judge charged the jury, substantially, that the mortgage covered the lumber sold by Parsons to Marrion, as well that which was delivered at the shop of the latter before as after the execution of the mortgage, if they believed it to have been all one parcel and intended to be embraced in it. There was no error in this to the prejudice of the defendants, provided parol evidence could be resorted to in explanation of the written agreement.
This evidence, which was introduced into the case without objection, and by the parties indiscriminately, and to which, I think, no valid legal objection could be interposed, showed conclusively that the parcel of lumber intended to be, and which was, mortgaged was that purchased from Parsons on the 10th May, only two loads of which had been delivered at Marrion's shop, on the 15th May.
Marrion *Page 41 had agreed to give a note for $125, indorsed by the plaintiffs in part payment for the lumber; and, at the latter date, Parsons suspended the delivery until the note was procured. To secure the defendants against liability, Marrion executed to them a mortgage on the lumber. The note was then indorsed by the defendants, and delivered to Parsons, and the latter resumed the delivery of the lumber at Marrion's shop.
Upon the uncontroverted proof in the case, there was no question for the jury as to the intention to mortgage the entire parcel purchased from Parsons. I think the judgment should be affirmed.
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