Wanner v. Mears

Long, J. August 10, 1891, plaintiff and wife gave to-defendant a chattel mortgage on their wrecking scow and outfit for $500, to secure the payment of their note of like amount, due on or before one year from date. The parties at that time all lived in Chicago, 111., and the mortgage was given and filed there. The mortgage contained a clause giving the mortgagors the right of possession until default made in payment, and also the following stipulation: “Or if the mortgagee, his executors, administrators, or assigns, shall feel he is insecure or unsafe, or shall fear diminution, removal, or waste of said property, or if the mortgagors shall sell or assign, or attempt to sell or assign, the said goods and chattels, * * * then, and in any or either of the aforesaid cases, all of said note and sum of money, both principal and interest, shall, at' the option of said mortgagee or his executors, * * * become at once due and payable, and the said mort [556] .gagee, his executors, administrators, or assigns, or any of them, shall thereupon have the right to take immediate possession of said property, * * * and may remove .and sell and dispose of the said property, or any part thereof,” etc. September 23, 1891, defendant took possession of the property by virtue of this clause in the mortgage, and, as the defendant says, “because the plaintiff threatened to -take the property away to Muskegon or elsewhere, and I was fearful I would lose my security.” Defendant advertised the property for sale on October 1, 1891. * September ■30 plaintiff tendered defendant the sum of $70 in money .and an account for services rendered, which he claimed, with the $70, amounted to enough to discharge the mortgage. This tender was refused, and, defendant refusing to •surrender the property, plaintiff brought this suit to recover the value of the mortgaged property, and also in the same action claimed to recover for the value of a sailboat which he claimed was lost by the carelessness and negligence of the defendant. On the trial in the court below before a jury, the plaintiff had judgment for the .amount claimed Several errors are assigned, but the principal ones relate to the rulings of the court in the charge, and the refusal -to charge as requested. The court charged the jury, in relation to the sailboat, -that, if it was lost through the carelessness and negligence •of the defendant, plaintiff would be entitled to recover its value. It is contended that this was error, for the reason that there was no evidence given which would warrant the finding that it was lost by defendant’s negligence. It appears that on September 3, 1891, defendant wrote plaintiff at Chicago to come with his outfit to Silver Lake, •Oceana county, Mich., to raise the sunken vessel, the Vesta V., belonging to defendant. Defendant towed [557] plaintiff’s scow with his steamer Eumbell, the sailboat-being tied to the scow. According to plaintiff’s testimony, he was on the scow, and saw that the sailboat was safely across the lake until the Eumbell turned to go up the-shore, when he noticed the sailboat capsize. He signaled the Eumbell. She slackened speed. He drew the sailboat-alongside the scow, and signaled the Eumbell to go ahead, because he thought they were so near shore she might run the distance. He says: “The sailboat towed that way for a short distance. Finally she chawed her line off near the stem, and went off; at least drifted away.” This is plaintiff’s'own version of the loss. He was there, and himself gave directions what to do. Certainly, from this showing, if any one was at fault, it was hot the defendant; and the court was in error in permitting a recovery for the-loss of the sailboat. The work done for the defendant by plaintiff was in. raising the Vesta V., which he seeks to have applied as-payment on his mortgage. “The circuit judge erred in charging the jury and in giving the requests for plaintiff found on pages 134-140 of' record.” Evidently this assignment relates to all the pages, from 134 to 139, inclusive; but these pages contain many statements by the court in which the law is correctly-stated, whatever may be said of some of them. It is too-well settled that such an assignment cannot be considered to need comment here. We have -carefully considered the other claimed errors,, and they need no discussion, as on a new trial the rights-of the parties will probably be fully protected. It is claimed by the plaintiff, however, that the case-ought not to be reversed, even if there be error found in reference to the charge about the sailboat, 'as the amount could be deducted from the judgment, and, with that-deduction, the judgment affirmed. The testimony in the558 •case is too uncertain for us to determine what value the jury placed upon the sailboat. The judgment is reversed, and a new trial granted. The other Justices concurred.