Frost v. Rosecrans

Notebook, J. For several years prior to the second day of March, 1883, J. H. Salisbury was engaged in keeping a general store at Clear Lake, Iowa. The plaintiff was during said time, and is now, a banker at the same place. On said second day of March, 1883, Salisbury executed to the plaintiff two chattel mortgages upon his stock of goods. One of the mortgages was for $3,200, and the consideration therefor was a loan of $1,200 in money, and a previous debt of $2,000 owiugby Salisbury to Frost. The other mortgage was in the sum of $1,863.98, and was executed to Frost to secure the claims of certain creditors, which were then in Frost’s hands for collection. On the ninth day of March, 1883, Salisbury executed another mortgage upon the said stock of goods to the North Star Boot & Shoe Company, to secure an indebtedness of about $1,000. These mortgages were all duly recorded very soon after they were executed. The defendant as sheriff levied the attachment on the goods on or about April 4, 1883, some time after all of the mortgages were recorded. The plaintiff became the owner of the North Star Shoe Company mortgage by assignment, before the levy of the attachment. There is no question but that all of these mortgages were made to secure valid debts and claims against Salisbury; and the evidence is without conflict that, for some time before the attachment was levied, Frost was in full possession of the goods, and that he held such possession under and by virtue of the chattel mortgages. i. an^ofchattc]s • ©viclenc© edgeand moi mortgagee. I. The defendant alleged that these mortgages were fraudulent as to the creditor represented by him, and the burden was upon him to prove the alleged fraud.' After the defendant had introduced his evidence in chief» ^ie plaintiff was called as a witness in his own hehalf, and in the course of his direct exami [407] nation lie was asked these questions: t£ Question. Did you know at the time these mortgages were made that Mr. Salisbury made .them with any intent to delay, defraud or hinder anybody’s creditors? Answer. No, sir. Q. Did you have any such intention at that time?1 A. No; sir.” The defendant objected to these questions and answers, and moved that they be stricken out. The motion was sustained, and the plaintiff excepted to the ruling, and assigns it as error. We think the ruling was clearly erroneous. It is a general rule that, where the intention or motive of a witness is a material question in the case, the witness may state what his intention or motive was. Whart. Ev. (2d Ed.) § § 35, 482, and authorities cited. It cannot be questioned that the intent of the plaintiff, and his knowledge of the intent of Salisbury, were most important and material questions in the case. 2. EVIDENCE : {jutthigirreieJudicial evi-" denee. II. The defendant was permitted to show that, about eighteen months previous to the execution of the mortgages in question, Salisbury executed certain chattel ’ ... m01dgages upon his stock then in store, and that sa^ mortgages were not recorded, and that the plaintiff had admitted that they were not recorded. The plaintiff in his testimony denied that he had so admitted, and he offered to introduce the record of mortgages, which showed that one of these old mortgages was recorded. The court, upon the motion of the defendant, excluded the evidence. We think it should have been admitted as evidence, in view of what had been introduced by the defendant upon that subject. We do not think that the fact that Salisbury executed certain mortgages to the plaintiff in the year 1881 was at all material to the issues in this case. Whatever they may, have been, there is no question but that the mortgages now in controversy were founded upon a sufficient consideration, and they should be judged upon their own merits, and the intention of the parties at the time they were made. But, as the court permitted .an inquiry to be made into the prior [408] mortgages, and the impression to go to the jury that by keeping them from record the parties thereto were guilty of secret and questionable transactions, the plaintiff should have been allowed to rebut such inference, if he could do so. „ imce^oi'chSciéiiVevi*’ deuce. 4. CHATTEL pupate at evidence^10 fraud. III. It is insisted that the verdict is without support in the evidence. We think this is true, especially as applicable to the mortgage executed bySalisbury to the North ®tar -^oot & Shoe Company. The consideration ^hat mortgage is not in any manner challenged, It was execuf;eci py Salisbury at the instance of one Mansfield, an agent of the shoe company. There is not one word of evidence impeaching this mortgage in its inception. Mansfield did just what any other collection agent would have done. He took such security for liis principal’s claim as be was able to obtain, and it is idle to charge liim or his principal witli any fraudulent act or intent. The evidence as to bow much the plaintiff paid for this 1 r morfcgage should not have been admitted. The mortgage was a valid lien upon the stock of goods, prior and superior to the attachment; and if the plaintiff discounted it, or obtained it for less than it was given to secure, Ills act in so doing would not render the mortgage fraudulent. Reversed.