Brody v. Chittenden

Deemer, O. J. 1 2 On and prior to the twenty-first day of December, 1895, defendant was engaged in tbe jewelry business in tbe city of Des Moines. He also bandied glass, queen’s and decorated ware, and optical goods. On tbe last-named date be executed tbe mortgages upon wbicb tbis action is bottomed. Tbe description of tbe property is practically tbe same in each, and reads as follows: “All of my stock of goods, jewelry, silverware, glass and queens-ware, of every kind and description, and all goods and merchandise now or hereafter in my store in tbe building and room known as 406 East Sixth (6th) street, in tbe city of Des Moines, Iowa, and all furniture and fixtures therein, including safes; said stock consisting principally of diamonds, watches, watch cases and movements, clocks, jewelry, optical goods, silverware, glass and queensware, and decorated goods, and other articles of merchandise.” It is conceded that no one of tbe first six items of property named in tbe preceding statement was a part of defendant’s stock of goods, and it is practically conceded that none of them may properly be said to be fixtures. The sole question in tbe case seemed to. be whether or not they, or any of them, were intended to be included in tbe mortgage under tbe designation of “furniture.” That question was submitted to tbe jury, and it found for tbe defendant. As tbe court set aside tbe verdict in so far as it related to tbe Swiss clock, tbe jardiniere, and three bench stools, we have only to inquire as to the other items of property. Tbe court instructed, in tbe fourth paragraph of its charge, as. follows: “Generally, furniture consists of those articles wbicb are used and prepared to be used in fitting up tbe place in question to adapt it as a place for tbe purpose for wbicb it is intended to be used. Tbe machinery, tools, apparatus, appliances, implements, instruments, and such like articles that are used in carrying on tbe business conducted at tbe place would not be furniture.” Tbis instruction is complained of, and we think tbe error assigned must be sustained. Tbe word “furniture” ordinarily [527] means that with which anything is supplied; the equipment or outfit of a trade or business; whatever may be supplied to a stock of goods or to a business, to make it convenient, useful, or gainful. As said in the case of Fore v. Hibbard, 63 Ala. 412, in construing a mortgage of a drug-store furniture and fixtures, “the articles, utensils, and implements used in a drug store, or other store, as the furniture thereof, differ in kind according to the purpose which they are intended to subserve; yet, being put and employed in the several purposes, as the equipment thereof, for ornament, or to promote comfort, or to facilitate the business therein done, and being kept or intended to be kept for those or some other purpose, they pertain to such places, respectively, and constitute the furniture thereof.” See, also, Bell v. Golding, 27 Ind. 173. The instruction says that appliances, implements, instruments, and such like articles used in carrying on the business would not be furniture. Herein lies the error of the instruction. Certainly the implements and instruments used in carrying on the business may be a part of the furnishings of the business. 3 II. One J. A. McKinney, the cashier of a bank to which one of the mortgages was given, was a witness for the plaintiff, and testified to selling the defendant a part of the mortgaged goods, including the Seth Thomas regulator, and also to the taking of the mortgage upon the stock. On cross-examination he was asked, over plaintiff’s objection, as to defendant’s using certain instruments and tools in his business as a jewelryman, and as to the use made by jewelers of regulators. This was clearly not cross-examination; and it was also incompetent, for the witness said he was a banker and had no particular knowledge of the jewelry business. [527] III. It was for the jury to determine, under proper instructions from the court, whether the property in controversy, or any part of it, was covered by the mortgage. This was largely a question of intent. In arriving at this intent, the situation of the parties and all the surrounding circum [528] stances were proper to be considered. Myers v. Snyder, 96 Iowa, 107. Plaintiff asked tbe defendant when on the witness stand, if the Seth Thomas regulator was not listed with the show case and other fixtures when he bought the stock of McKinney. Objection to the question on the ground of immateriality was sustained. As McKinney sold the stock to Chittenden and took a mortgage back for the purchase price, — this mortgage being one under which plaintiff claims, — it seems to us that it was quite material to show how this. regulator was treated by 'the parties at the time of the sale. 5 IY. Certain jewelers, and dealers in jewelry, watches, etc., were placed on the witness stand by the plaintiff, and asked as to how regulators were regarded by the trade,- — whether as part of the stock, as fixtures, or as tools. Some of them were also asked as to how diamond scales were treated and regarded. Objections to these questions were sustained. We think the evidence should have been admitted. When a word is used in a technical or peculiar sense, as applicable to any trade or business, it is proper to receive testimony of witnesses having special knowledge of such words as to the meaning attached to it. Brown v. Brown, 8 Metc. (Mass.) 573; Miller v. Stevens, 100 Mass. 518; Downs v. Sprague, 1 Abb. Dec. 550; Eaton v. Smith, 20 Pick. 156; Collender v. Dunsmore, 55 N. Y. 200; Newhall v. Appleton, 114 N. Y. 140 (21 N. E. Rep. 105); Greenleaf Evidence; sections 292, 294; Schaub v. Brewing Co., 80 Tex, 634 (16 S. W. Rep. 429). Evidence as to the meaning attributed to these words, or as to how regulators and scales are regarded by the -trade, was proper to be considered in arriving at the identity of the goods intended to be covered by the mortgage. 6 V. Complaint is made of the first instruction, wherein the jury is told that the goods had a certain value. As the plaintiff asked an instruction to the effect that the jury had nothing to do with the question of value, and should disregard all the evidence on the subject, he is not in position to complain. [529] YI. Some other questions are discussed by counsel, but, as they are not likely to arise upon a re-trial, we do not consider them. For the errors pointed out, the judgment is reversed.