Curtis v. Martz

Cxiristiancy J. The first error assigned is upon the admission of the chattel mortgages. They were objected to on the gTound that they did not cover the property replevied, described in the declaration as “ one wooden statue of an elephant.” This, as regarded the first mortgage, depended upon the question whether it was included in the term “ fxxrniture ; ” and as to the second moitgage, whether it came under the designation of “ signs and furniture.” Whether it was so included was a question depending partly upon the written instruments, and partly upon extrinsic evidence, showing the subject matter to which the instrument applied, and the nature and uses of the property hei-e in question. The question of the admissibility of the mortgages was one of construction, for the court only. Had the terms used been such that no extrinsic [512] evidence could possibly bring the property within them, the court should have excluded the instruments. But we do not think this was' the case; nor do we think the court could, without extrinsic evidence, determine by the instruments alone whether the property was intended to be included, or not. And if offered before any extrinsic evidence had been given, the court would have been bound to admit them, if the plaintiff should offer to follow their introduction with such evidence as might tend to show the property was included. But here, the plaintiff had produced that evidence without objection, before the mortgages were offered; and from this it appeared that the property in question was used as a sign in front of the “ Elephantine Boot and Shoe store ” of the mortgagors ; that it was taken into the store every night, and pushed out again in the morning, “ boots and shoes being hung o^ver its back and on its tusks and trunk,” and having for the extremities of its legs a representation of red top boots. Construing the mortgages in the light of this evidence, we think they were clearly admissible. If that evidence was true — and on the mere question of the admissibility of the instruments, the court did not err in assuming its truth, as this was no more than deciding upon its tendency — the property we think was clearly included under the word “ furniture ” in the first mortgage, and “ signs and furniture ” in the second. There can be no possible doubt that it was included in the word “ signs,” as that was its principal use; but it was a peculiar kind of sign, and the peculiar manner in which it was used brought it properly within the more general designation of “furniture” of the store. There was, therefore, no error in admitting the mortgages. The court was x-equested to chax-ge that the question, whether the pi-operty replevied was included in either of the mortgages, was one of intent in the mortgagors, and for the jury to determine. This we think was properly refused. A charge in this general form would have been objectionable, if not clearly erroneous; for, though the question was, in one [513] sense, one of intent, it was the intent of the contract, the construction of which belonged to the court, and not to the jury. If all the facts the parol evidence tended to prove, in reference to the nature and use of the property, had been apparent on the face of the instruments, it would have been the duty of the court to instruct the jury, directly and positively, as to the effect or intent of the instruments, and the duty of the jury to follow that instruction. But such facts did not appear upon the face of the instruments, and it became necessary to resort to the extrinsic evidence to show the subject matter to which they applied, and the uses made of the property, in order to give the instruments their true construction; in other words, to ascertain their intent. Had these facts been ascertained, by special verdict or otherwise, it would have been the duty of the court to construe the instruments in connection with, and in the light of such facts, in the same manner as if expressed upon their face. As they had not been thus ascertained, they could only be ascertained by the jury on the trial; and, when thus ascertained, they were to have their due weight upon the construction of the instruments. But this construction still belonged to the court. The court could not find the facts, nor could the jury construe the instruments, even in the light of the extrinsic facts they should find, except according to the instructions of the court. It was, therefore, a proper case fora conditional or hypothetical charge. The jury should have been told (in substance) what would be the proper construction of the mortgages upon the different states of facts which might be found by them.— Neilson and others v. Harford, 8 M. & W. 806-823; Wason v. Rowe, 16 Vt. 525; Chitty on Cont. 73. The case of Curtis v. Phillips, 5 Mich. 112, cited by plaintiff in error, is not in opposition to this view. That was a case, under the statute, referred to the decision of this court upon both the facts and the law. The court in the present case did not assume to decide the facts nor to withdraw them from, the jury, but, in answer to [514] the erroneous request just mentioned, charged that in his judgment the property replevied might be included in the word “furniture,” or other description of the first mortgage, and “ signs and furniture ” in the second. This properly left the facts to the jury. The charge was strictly correct so far as it is set forth upon the record; and, as the whole charge does not purport to be given, we must assume that the rest of the charge was unexceptionable, and in accordance with the law as above explained. The judgment of the court below must be affirmed, with costs, to the defendant in error. The other Justices concurred.