Gushee v. Robinson

Appleton, J. The issue before the jury in this case was whether the horse, for the alleged conversion of which this action was brought, had been sold by John Kiff, 2d, to the plaintiff, or to one William H. Haskell, through whom the defendant derived his title. In the course of the trial, the note given for the horse in dispute was read in evidence and was of the following tenor: “Appleton, 1852, 5th month, IT. “For value received, we jointly and severally promise to pay John Kiff, 2d, or order, the sum of forty-two dollars' in five months from date, with interest, it being part pay for a red mare, six years old; said mare to be holden to J. S. Gushee, for the amount that he may pay for the same. “ J. S. Gushee. “ Attest, Marcus Kiff. “ William H. Haskell.” The name of Gushee had lines drawn over it. The counsel for the defendant contended that this note, or memorandum, constituted a mortgage; that being a mortgage, it should have been recorded, and that not having been recorded, the plaintiff, in consequence thereof, was not entitled to recover, and requested the presiding Judge so to instruct the jury, which he declined. In so doing, no error is perceived. This note, or memorandum, belonged to the payee, who had the entire control over the same. It cannot be regard [414] ed as a mortgage. It is not such by its terms. There is no mortgager or mortgagee. The plaintiff could not have controlled its possession for the purpose of having it recorded, had he desired it ever so much. It might be considered as indicating the relation between the signers to the note, and as such was an important article of evidence bearing upon the question as to whom the sale had been made. It was not a mortgage nor intended to be one, nor should it have been recorded as such. Sawyer v. Fisher, 32 Maine, 28. The other instructions were sufficiently favorable to the defendant, and afford no just ground of exceptions. No motion for a new trial has been filed, and upon exceptions, the correctness of the instructions given, can only be considered. Exceptions overruled.