Hall v. Ballou

Seevers, Oh. J. 1. ATTACHMENT: indemnifying bond: protection of officer. I. It was stated in tbe petition plaintiffs were tbe “ owners of six hundred and fifty sheep, by virtue of a chattel mortgage,” and that said sheep were taken from the possession of Edson Pennell, by the defendant, under and by virtue of a writ of [586] attachment against said Pennell, in favor of Phillip Aller. Several defenses were pleaded by the defendant, which need not be stated at length; among which was that the defendant had taken from the attaching creditor an indemnifying bond, and therefore, the action was barred. A demurrer to this portion of the answer was sustained, and this presents the first alleged error discussed by counsel for the appellant, who cite and rely upon § § 3055, 3056, 3057 and 3058 of the Code. These sections, however, relate solely to the protection of the officer, when he levies an execution. The levy of an attachment is not within the statute, and the officer in such case is not protected thereby. It was so held in Wadsworth v. Walliker, 45 Iowa, 395. The court did not err in sustaining the demurrer. 2. — : insolvency: evidence of: opinion of witness. II. The mortgage, on the face thereof, showed it was given for the purpose of indemnifying the plaintiffs as the sureties of Pennell, the mortgagor, on a promissory note. The defendant claimed the mortgage was executed for .the purpose of defrauding the creditors of Pennell. The defendant asked a' witness whether he was acquainted with the financial condition of the plaintiff, Olmstead. The witness replied: “only by general reputation;” whereupon the following question was asked: “ State whether or not he is solvent or insolvent?” An objection to this question was sustained. ■ The witness, however, proceeded to state certain facts within his personal knowledge, in relation to the financial condition of Olmstead. Counsel for appellant insist the proposed evidence was admissible “ under the issues presented in the case.” We are at a loss to determine which issue is meant by counsel, as there are several, but have concluded it must be the one above stated. No authority is cited in favor of the claim made, and we do not believe the evidence would tend to establish any issue in the case, and besides this, the personal opinion of the witness was not admissible for any purpose. [587] 3. PRACTICE: instruction: prejudicial error. [586] III. The defendant pleaded there was an oral agreement, [587] made at the time the mortgage was executed between the P^i^ibs and the mortgagor, in relation to the possession of the sheep, and the defendant claimed if such an agreement was made, the mortgage was void and the sheep subject to'the attachment. The first instruction asked by defendant was based on such alleged agreement, and was to the effect above stated. It was refused, and in so doing it is insisted the court erred. We are unable to say there is any substantial difference between the eleventh paragraph of the charge and the instruction refused. If it be conceded there is the refusal was without prejudice, because the jury found specially there was no such agreement entered into. There was no prejudicial error in refusing to give the instruction under consideration. 4. MORTGAGE: indefinite description: notice. IV. In our opinion there is no substantial difference between the thirteenth paragraph of the charge and the second instruction asked. There was no error, therefore,- in refusing to give the latter. The property mortgaged was described therein as follows: “ One thousand sheep, now owned by Edson Pennell, being fed for market by said Edson Pennell, in Troy township, Clarke county, Iowa.” The defendant pleaded the description of the property was not sufficient to impart notice to attaching creditors, and it was, therefore, void. The defendant asked the court to instruct the jury “ as a matter of law,” that the “ sheep as described in the chattel mortgage, are not sufficiently described to impart constructive notice;” and also if the jury found the mortgagor had in possession a flock of sheep to the number of one thousand to fifteen hundred, then it was the duty of the plaintiffs to point out the specific sheep they claimed to be covered by the mortgage. This instruction was refused, but the court gave the following: “ 12th. If you find that the description of the property in the mortgage was so indefinite and uncertain, that a person of ordinary discernment would not be led to presume that the sheep taken under the attachment were those described by [588] the mortgage, and you further find defendant' had no actual knowledge, that the sheep levied upon were the sheep included and described in the mortgage, prior to the levy, then the attachment would hold notwithstanding the mortgage. But upon the other hand, if defendant had actual knowledge that the sheep levied upon were included in said mortgage prior to levy, then the mortgage would hold, notwithstanding the indefinite manner in which they were described in the mortgage; and knowledge of defendant would also include knowledge which Philip Aller might have had at the time of ordering the levy.” We think the instruction given is as favorable to the- deT fendant as he was entitled to, and that the third instruction asked was properly refused. Our reasons will be briefly stated: In the answer the defendant admitted he levied upon the sheep that were included in the, mortgage. This being so, the insufficient description, conceding it to be such, is immaterial, but it may be said the defendant had the right to plead contradictory defenses. We incline to think this is so, but from an examination of the evidence of the attaching creditor and the defendant, they both, prior to the levy, had notice of the mortgage, and also that they intentionally and purposely levied the attachment on sheep they knew were included in the mortgage. This was done because they believed they had the right to pay the mortgage and take the sheep, or that if they left sheep sufficient, in their opinion, to satisfy the mortgage, they could take the balance. Under the circumstances, the instruction asked was rightly refused, and the one given in its stead is correct. 5. PRACTICE: preponderance of evidence. Y. Lastly, it is claimed the verdict is against the instructions of the court and should have been for the defendant. We should have been better satisfied if the court below had granted a new trial. But while this is So, we cannot, under the settled practice of this court, reverse the. judgment. We cannot say the jury were actuated by passion or prejudice. There was evidence upon [589] which the verdict can be supported, and the most that can be said is, the preponderance may possibly be with the defendant. Affirmed.