Catlett v. Stokes

MoCOY, J. The -com-plaint in substance 'states that on the 15th day of August, 1892, one Cassidy executed and delivered to ■plaintiff his .promissory note for $6,000, due January 1, 1893; that on the 29th ■da)'- of July, 1893, to secure the payment of said note, Cassidy executed and delivered to plaintiff his chattel mortgage upon and covering' 400 acres of wheat and 200 acres of oats then owned by Cassidy and then growing on section 11, township 114, range 51, in Harolin county, and which mortgage was on the 1st day of August, 1893, filed in -the office of the register -of deeds in and for -said oo-unty; that between the 24th day o’f August, 1893, and the 1st day of January, 1894, the said Cassidy, without -the — 283 — knowledge or consent of plaintiff, wrongfully sold and delivered 4,000 bushels of wheat covered by said mortgage to- defendant at his elevator then owned and operated by him at -C-astlewood, and that defendant mingled the same therein with other grain so that the same could not be identified, and thereafter defendant in the usual course of 'business sold and delivered said wheat to various parties in other states and converted the same to his own use to the damage of plaintiff in the sum of $946.58, the balance then remaining due and unpaid to plaintiff upon said mortgage indebtedness ; that said mortgaged wheat at the time the same was so delivered to defendant was of the reasonable value of $2,000; that plaintiff, at various times between the 1st day of January, 1894, and the commencement of this action, -demanded from defendant all said wheat or ibs value, but that defendant refused to deliver said wheat or any .part of it, o-r the value or any part thereof to plaintiff; that said Cassidy is insolvent; that plaintiff has obtained judgment against said 'Cassidy for the balance due on said note, but that the same has never been paid, and there is now justly due on said note, mortgage, and judgment the said sum of $946.58. Defendant by his answer denied the execution and -delivery of said note and mortgage, and denied the delivery of said mortgaged grain by Cassidy to defendant, and -denied that plaintiff made demand for said wheat or the value thereof, and alleged that ' plaintiff and said mortgagor Cassidy entered into an agreement whereby plaintiff waived his mortgage on the wheat grown on. section 11, in consideration of said mortgagor delivering to plaintiff certain oats, barley, and horses to the amount of $1,138.35. There was verdict and judgment for plaintiff, and defendant appeals. At the commencement of the trial defendant objected to the introduction of any evidence under th-e complaint on the ground that no demand was alleged sufficient to- support an action for conversion, which objection was overruled, an-d exception taken by defendant; and, at the close of all the evidence, defendant -moved for a directed verdict on the ground that there was no demand proved sufficient to su-ppo-rt an action -for -conversion, and which motion -was also denied and -an exception taken-. These rulings of the court are now assigned as error. [1, 2] We are of the opinion that the allegations of the com — 284 — plaint and the evidence are -both sufficient upon the question of demand. Plaintiff testified -that he had made both written and verbal demands upon defendant for the wheat, or payment of it, covered by the mortgage, on -the 12th day of November, 1896, and that defendant very decidedly -refused to comply therewith. These demands were -amply definite. [3,4] Appellant urges that there was no- competent -evidence as to the value of the wheat claimed to have been converted in that the evidence of value given was based -upon an incompetent writing used to refresh the -memory of the witness, and also that the evidence adduced as to the value referred to a -place -distant from that o-f conversion. We are -of the -opinion- that this contention is not -tenable. Witness Schnider testified that during November, 1896, he was employed at Estelline in an elevator as weigher and- assistant grain buyer under one Thompson, his brother-in-law, who was principal -agent of the elevator -company. Witness had with him a book purporting to show the daily purchases, weights, and market prices of grains at such elevator for the month of November, 1896, and he further testified that the entries were made in the book, usually in his presence, by the brother-in-law, who is now dead-; that the entries were -made daily in -the usual course of business; and that he knew such entries to be correct. Using this -book -to- -refresh his memory, witness testified that the market p-rice of wheat at Estelline on November 14, 1896, was about 65 or 68 cents per bushel. The testimony further -showed that C’astlewo-od -an-d Estelline are about 13 miles apart, o-n- -the same line of railway, and that the market price of wheat is -practically 'the same at both stations. Jones, Ev. §§880, 881; 1 Greenleaf, Ev. §436; Wigmore, Ev. § 747, 748: 2 Elliott, Ev. §§859 to 870; Schmidt v. Scanlan, 144 N. W. 128. [5] Appellant further contends that there was a variance between the note -offered and received in evidence and the note described in the mortgage that would render such mortgage void. The note bears date August 15, 1892, -due January 1, 1893, and indorsed, “Extended to November 1, 1893.” In the mortgage'the note is -described -as dated August 16, 1893, due January 1, 1893. The amount and maturity of -the note are correctly described in -the mortgage. It is evident that either date of the note or date of maturity, -as recited in the mortgage, was the'result of error. We — 285 — are of the opinion -that this discrepancy in dates in no manner affected the validity of the mortgage. [6] The description of the wheat, as recited in the -mortgage, is as follows: “Four hundred acres of wheat growing on 11,114-51 all in my possession in -the county of Hamlin, South Dakota.” Appellant contends that this description is so indefinite and meaningless as to amount to no description at all. We hold that this description was sufficient. The figures “11-114-51,” in the connection in which they appear in this description, have such a general and well-understood meaning that no one could -possibly be -misled or -prejudiced thereby. [7] It is contended by appellant that the mortgage in question having -been filed on August 1, 1893, and no renewal thereof having been made under section 2089, Civ. Code, and no demand having been made by plaintiff upon defendant for said wheat until November, 1896, said mortgage became invalid, under the -provisions -of said section, after the expiration of -three years from, the said filing thereof -as against the said claim of -plaintiff. W-e are of the opinion -that this -contention is not well, founded. Appellant became the -purchaser of said wheat between the 24th day of August, 1893, -and the xst day of January, 1894. Section 2089 only applies to those who are good-faith purchasers after -the expiration of the three years, when there has -been no renewal. Meech v. Patchin, 14 N. Y. 71; Manning v. Monaghan, 23 N. Y. 539; Lewis v. Palmer, 28 N. Y. 271; Wolf v. Rausch, 22 Misc. Rep. 108, 48 N. Y. Supp. 716; Bank v. Sprague, 21 N. J. Eq. 530; Frank v. Playter, 73 Mo. 672; Edson v. Newell, 14 Minn. 228 (Gil. 167); Lowe v. Wing, 56 Wis. 31, 13 N. W. 892; Bank v. Bank, 46 Kan. 376, 26 Pac. 680; Mill Co. v. Yates, 57 Neb. 286, 77 N. W. 677; Jones, Chat. Mort. §§ 293-424; 6 Cyc. 95-1096. One McGee, -a witness for plaintiff, was permitted to- testify, over proper objections, -that in September, 1893, Cassidy, the mortgagor, who was then in possession of said grain, which was after-wards sold and -delivered to defendant, employed -the' witness to haul said grain to the elevator of defendant, and that said mortgagor then -stated to him that said grain -was grown on said section 11. Appellant now-urges such ruling of the court as error, on the ground that -such testimony was- hearsay and not binding upon appellant. Respondent contends that such testimony was — 286 — admissible as an admission against interest of a former owner while in possession. While we are of the view that it is a very-close question whether or not such testimony falls within the rule permitting the giving in evidence of admissions against interest of former owners in -possession (Jones, Ev. §§ 244-245; Wigmore, Ev. §§ 1461-1462), still we are, however, of -the further view that under the entire evidence in the case upon the question of the identity of the mortgaged grain, the admission of this particular evidence was not prejudicial, if error, as there was much other direct evidence identifying the grain delivered to defendant as ■being covered by the mortgage. [8] It is also contended by the appellant that the 'trial court erred in sustaining objections to- certain portions of the deposition of one Mulholland, a witness for plaintiff, offered by defendant for the purpose of impeachment, to which offer respondent objected on the ground that no proper foundation had been laid, in that the attention of the witness- had not been called to such portions' of the deposition ,ta -the end that he might have an opportunity to explain any apparent discrepency between his evidence and the deposition. We hold that the objections were properly sustained. Among other things the court in substance instructed the jury that when a mortgagor mixes mortgaged grain with his own without the mortgagee’s consent and uses out of the bins where the intermingled wheat was stored; or sold out of the same indiscriminately, then the mortgage would attach to the entire lot, unless it is shown by the 'evidence that -at the time of the sale of the wheat to defendant, if you find that any was sold -to him, it could he ascertained the exact portions of the wheat raised on section XX, and what was raised elsewhere, then it should be divided up proportionately, and the defendant would then only be liable for such proportion of the -wheat he bought as was raised on section 11. Appellant excepted to such instruction and urges the same as error as not embodying a correct statement of -the law. As applied to the evidence in this case, we are of the opinion this instruction was proper. [9] The general rule seems to be that when a mortgagor of goods mixes them purposely or carelessly with his own, and sells, the whole, the mortgagee may maintain an action to recover the whole or the value thereof from the purchaser, in the absence of — 287 — evidence to distinguish the mortgaged goods from those not mortgaged ; and when the mortgaged goods is grain or other • like property that may be divided into aliquot shares without injury, when there is no evidence upon which to base an aliquot division, the mortgage will attach to and cover the entire lot. Adams v. Wildes, 107 Mass. 124; Willard v. Rice, 11 Metc. (Mass.) 493, 45 Am. Dec. 226; Ryder v. Hathaway, 21 Pick. (Mass.) 298; Robinson v. Holt, 39 N. H. 557, 75 Am. Dec. 233; Hesseltine v. Stockwell, 30 Me. 237, 50 Am. Dec. 627; Root v. Bonnema, 22 Wis. S39; Kreuzer v. Cooney, 45 Md. 582; Cobby on Chat. Mort. § 992; Cobby on Replevin, §405; Jones on Chat. Mort. § 481; 7 Cyc. 35. Other assignments of error are urged, based on the omission to give instructions to the jury, but as it appears -that the general charge of the -court included substantially the same propositions, and for reasons already stated in relation to- the demand, no prejudicial error can be -predicated -thereon. After careful examination of the entire record, we are of the opinion that no- prejudicial error exists therein. The judgment an-d order appealed from are affirmed.