Dixon v. Atkinson

ELLISON, J. Defendant mortgaged to plaintiff a lot of furniture and fixtures pertaining to a restaurant to secure an indebtedness he owed to plaintiff. The mortgage permitted defendant to remain in possession until default, but contained conditions that defendant should not sell or offer to sell or dispose of the goods. It contained also a condition that defendant should not allow an unreasonable depreciation of the property. The judgment was for defendant. There was a great deal of testimony taken at the trial covering the issues of fact and at its close many instructions were offered by each party. An examination of these has satisfied us that they properly and fairly covered the issues upon which the jury was to decide. There was evidence tending to prove that defendant did sell some part of the fixtures or furniture, particularly a restaurant stove. There was. also evidence that he attempted to sell parts or all of the property. This, alone, would have justified plaintiff’s action. But there was also evidence that plaintiff authorized or gave her consent to these sales and attempts to sell. If she did it constituted a valid waiver of the conditions aforesaid. The instructions put this hypothesis to the jury and we find no error. [29] But it is charged that defendant made a second mortgage on the property to a third party and put him in possession. This likewise, standing alone, was a violation of the conditions against a disposal of the property and would have justified plaintiff’s action. But the evidence for defendant tended to prove that he only mortgaged the stock in the restaurant as distinguished from the fixtures and furniture and which was not included in the plaintiff’s mortgage; and that he did not part with the possession of the property included in plaintiff’s mortgage. This-issue was also properly submitted to the jury. In other words, the points made by plaintiff, though good in themselves, have been avoided by the testimony in behalf of defendant. As before stated, we consider the instructions given, regarded as a whole, including the issue of depreciation of value, as presenting the case fairly and fully. When such is the case we need not consider whether some of those offered by plaintiff and refused were correct declarations of law. The most serious objection is that which is- taken in this court to the verdict. It was as follows: “We the jury find for the defendant, and assess his damages and interest in property at three hundred dollars ($300), above debt due plaintiff.” Since the verdict was against plaintiff and since he had possession under his writ, -the jury should have found the value of the property and the damages for the taking and detention. Sec. 4473, R. S. 1899. But these matters were in the interest of the defendant. The provision that the value of the property taken shall be assessed is that the defendant may exercise his right to an election to take the property itself or the value so assessed. He made formal waiver of this privilege and accepted the verdict, the judgment being entered so as to conclude him in the future. [30] The verdict shows that the jury considered the defendant’s interest- in the property, that is, its value, and his damages for the taking and detention, and deducted from the total the amount of defendant’s indebtedness secured by the mortgage. It would have been improper and unjust for the jury to have considered that defendant’s interest was the full value of the property unaffected by what he owed plaintiff and had conveyed the property to secure. Dodd v. Wilson, 26 Mo. App. 462. The jury, therefore, rightly adjusted the respective interests of the parties. We consider that the case of Stroud v. Morton, 70 Mo. App. 647, in a general way, supports these views. But there is another consideration which has had some weight in leading us to disregard the informality and imperfection of this verdict and that is that plaintiff made no objection and took no exception thereto when it was rendered. Herring v. Corder, 49 Mo. App. 378. The judgment will be affirmed. All concur.