Vanarsdale v. Hax

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The Central Savings Bank purchased the notes from the payee, who indorsed them in blank. Subsequently the Central Savings Bank [880] sold .the $6,000. poje to Louis Has, the plaintiffs’ intestate, and indorsed and sent both notes to the State Bank of Holton for collection, but the indorsements did not show that they were made for collection. The complaint averred the notes had been, indorsed “in writing” to the plaintiffs. When they were offered in evidence, the defendant objected because the written indorsement on the back of the notes did not appear to be to the plaintiffs, but the indorsement of the payee was in blank, and the indorsement of the Central Savings Bank was special to the State Bank of Holton. Thereupon the court permitted the plaintiffs to amend the complaint by striking out the allegation that the $6,000 note had been transferred to the plaintiffs by “written indorsement,” and received oral proof that the notes were the property of the plaintiffs, and that the indorsement to the State Bank of Holton was for collection only. The court did not err in allowing the amendment. McDonald v. Nebraska, 101 Fed. 171, 41 C. C. A. 278. But there was a shorter way of meeting the objection. ■It is well settled .that the holder of a bill or note indorsed in blank by the payee may, at the trial, strike out all subsequent indorsements, and recover on the instrument as indorsee under the blank indorsement, and may — though in most jurisdictions it is unnecessary for him to do so — fill up the blank indorsement to himself at the trial. Emerson v. Cutts, 12 Mass. 78; Crosby v. Wright (Minn.) 73 N. W. 162; Mitchell v. Fuller, 15 Pa. 268; Preston v. Mann, 25 Conn. 127; Wickersham v. Jarvis, 2 Mo. App. 279; Mottram v. Mills, 1 Sandf. 37; Hargous v. Lahens, 3 Sandf. 213; Evans v. Cee, 11 Pet. 80, 84, 9 L. Ed. 639; Enc. Pl. & Prac. tit. “Negotiable Instruments”; 4 Am. ,& Eng. Enc. Law (2d Ed.) 266 et seq. Moreover, under the Kansas Code the real party in interest may maintain the action without reference to the indorsements. Objection was made to the introduction in evidence of a copy of the chattel mortgage. Under the statutes of Kansas the deposit in the office of the register of deeds in the proper county of a chattel mortgage, or a trué copy thereof, is effectual to protect the rights of the mortgagee for the period fixed by the statute; and it is provided that a copy of any such original instrument, or any copy thereof, so filed and “certified by the register in whose office the same shall have been filed, shall be received in evidence.” The register of deeds certified that the copy of the mortgage offered in evidence was “a true and correct copy of an instrument purporting to be a chattel mortgage dated October 15, 1898, wherein Charles L. Wilson and George • Maris are grantors and the A. J. Gillespie Commission Company is grantee, as the same appears of record in Book M of Chattel Mortgage Records in my office.” It was objected that this certificate was vitiated by the use of the word “purporting.” The use of that word neither added to nor detracted from the force and effect of the certificate, which fully and accurately described the instrument on record. It was further objected that the mortgage was void because it covered the forage which was to be used to feed the mortgaged cattle during the winter. The authorities relating to the mortgage of ch*».' tels which are to be consumed by the mortgagor have no application to a case like this. The forage was an incident to the cattle. It was [881] necessary to the preservation and sustenance of the cattle, and, in a sense, a part of the cattle. It was not to be consumed by the mortgagor for his support or use, but was to be fed to the mortgaged cattle, and without which they would have been valueless as a security or otherwise. Moreover, if the mortgage of the forage was invalid' for the reason urged by the plaintiff in error, that would not affect the validity of the mortgage on the cattle. It was further objected that it was not shown that the mortgage remained on file in the office of the recorder of deeds, but the presumption of law, in the absence of proof to the contrary, is that it did. The real issue in the case was one of fact, and was whether the plaintiffs by themselves or their agent had authorized the sale of the cattle by the mortgagors. This issue was fairly and fully presented to the jury in the instructions of the court, and found against the defendant. The only specific exception taken to the charge of the court before tbe jury left the bar, and therefore the only one we can notice, is that in its charge the court expressed the opinion that there was no adequaie proof that the plaintiffs or any agent of theirs consented to or authorized the sale of the cattle to the defendants. In the federal courts, as in the English courts, the judge is at liberty to indicate to the jury his views of the facts, when the jury are also told, as they were in this case, that they are the exclusive judges of the facts, and not bound by the court’s view of them. Some exceptions were taken to the admission and rejection of evidence, but they are not of sufficient importance to require or justify a separate consideration. They have been considered, and found to be wholly without merit. Exception was taken to the refusal of the court to give the jury several special requests asked by the defendant, all of which were rightly refused. So far as they were good law, they were covered by the charge in chief. Finding no error in the record, the judgment of the circuit court is affirmed.