Dunning v. Stearns

By the Court, Welles, J. The agreement between the defendant and Emory, of the 26th of February, 1845, was in the nature of a chattel mortgage, upon the ashes, lime and barrels. (McComber v. Parker, 14 Picks 497. Langdon v. Buel, 9 Wend. 80.) It was put on the files of the town clerk of the town of Webster before the execution of the chattel mortgage from Emory to the plaintiff. But it is urged, that as respects the ashes, it was void for uncertainty, as the quantity of ashes is not mentioned; and that it was not competent to prove by parol the quantity intended. As between the parties to the instrument it is abundantly settled that such proof was admissible. (Fish v. Hubbard, 21 Wend. 651, and cases cited by Cowen, J.) Can strangers, or creditors of Emory, take advantage of the defect ? Did it give notice to the world, within the spirit of the act requiring chattel mortgages to be filed, of the property intended thereby to be sold by Emory to Stearns, and upon which the latter retained a lien? If it did it was sufficient. The maxim is, TJt res°magis, valeat quam per eat. The ashes are described as the ashes then being in the ashery in the possession of Emory. It did not appear that there was more than one ashery of which Emory was in possession, or that Stearns had any other ashes there than those in question. It seems to me, therefore, that the fair intendment is that the ashes described were all that Stearns had in that ashery. It is further contended that the lien created by the instrument in question between Stearns and Emory, of February 26, 1845, was lost and destroyed by the change in the articles, produced by the process of manufacturing them into potashes, and that it did not and could not extend to the manufactured article, because that was not in existence at the time it (the lien) was created. This might be so, if it were not for the language of the instrument. (Sillsbury v. McCoon, 6 Hill, 425; S. C. 4 Denio, 332.) The language referred to is the following: “ It is further agreed that the said Nelson is to have and maintain a lien on said ashes, lime and barrels, and also the potash made from the same, until the above claim is fully satisfied.” It was clearly the intention of the parties to the agreement to create a lien, as well upon the [634] potash to be manufactured, as upon the articles out of which it should be made; and I think it was competent for them to do so. It was an agreement to hypothecate the products of the particular property pledged, and the lien would attach upon the new article as fast as it came into existence. (Story on Bail. § 294. 1 Do-mat, b. 3, tit. 1, § 1, art. 5.) It is furthermore objected that the intermixture of the ashes mortgaged with other ashes of Emory, destroyed the lien. It does not appear that the defendant knew of or consented to the mixture; and in such case the ashes of Emory which he mixed with those mortgaged, would, by the law on the subject of confusion of goods, become accessorial to the mortgaged property, and come under, and be subject to the lien and operation of the mortgage. If the defendant had consented to the mixture, the effect would have been to make him tenant in common with Emory of the ashes, after the mixture ; and for the purpose of deciding this appeal the consequence would be the same. The county judge decided that “ the identity of the property and lien of the defendant by virtue of his mortgage was lost and destroyed by the mixture above mentioned, in manufacturing the same, and that the defendant had therefore failed to make out any defense to the suit.” In this I think he erred; and the judgment should be reversed, and a new trial in the county court should be ordered, with costs to abide the event. Ordered accordingly.