Conner v. Carpenter

The opinion of the court was delivered by Redeield, Ch. J. We have examined this bill of exceptions with some care, and, it seems to us, the case was correctly decided by the county court. [240] I. The offer to show by oral evidence that, at the time the contract was executed, the writing was agreed to be a sham, if admissible, would certainly afford a very expeditious mode of evading the rule that the writteh contract shall exclude all oral stipulations or deductions made at the same time. If this evidence is equivalent to an offer to show that it was part of a scheme to impose upon the plaintiff’s creditors, or others,-it would not be competent for the party to thus escape from his contract. He should nevertheless be bound by his undertaking. In any other view the offer seems to be an attempt to contradict and evade the effect of the writing by oral evidence. The extent to which the evidence was allowed in the court below seems, certainly, all that could be justified by the rules ofi evidence. The plaintiff was allowed to show the condition and the circumstances under which, and the object for which the writing was given, and that he had paid the price of the horses so as to defeat the defendant’s claim, but not to contradict or vary the terms of the written contract. • H. The objection that this was a mere pledge, and that allowing the property to go back into the possession of the pledgor extinguished the right, is sound, if the premises are maintainable. But the transaction was intended, obviously, to secure the defendant, consistently with the possession remaining in the general owner. This is what is' meant by a mortgage of personal estate. One of the important distinctions between a mortgage of personal estate, and a pledge is, that in the former case, the general owner may, as between the parties, retain possession of the chattels, and in the latter, the special owner must have possession of them. The same terms, which create a pledge if the possession passes, will often be held to create a mortgage ; ordinarily, perhaps, if the possession is to be retained by the general owner. Another important distinction between a pledge and a mortgage of personal property is, that in the former only a special property passes, and in the latter, the general property. It is obvious, in the present case, according to the plaintiff’s own testimony, that the purpose and object of the transaction was to create a security to the defendant, for signing the note to Scofield, and to do this by mortgage of the three horses, and the other property, [241] with the agreement that the defendant might take possession .of the property at any time he chose. Under this state of the case, we do not see how the plaintiff can expect to maintain this action, without first paying the notes, and demanding his property. Judgment affirmed.