102 A.D. 544 | N.Y. App. Div. | 1905
This action was brought to recover a judgment for a deficiency arising upon a sale under the foreclosure of a chattel mortgage. The complaint avers that on or about the 16th day of November, 1900, the plaintiff sold and delivered the property covered by the chattel mortgage to the defendant for the agreed price of $800 and that the mortgage was executed upon such property as collateral security for the purchase price; that default was made in the j>ayment of interest and principal secured to be paid by the mortgage, when the same was foreclosed and the property sold at a public sale, and after deducting costs and expenses of the sale and applying the same, there remained a deficiency of $675.47, for which sum judgment is demanded, with costs.
The answer put in issue the sale of the property by the plaintiff to the defendant by specific denial. For an affirmative defense it admitted the execution of the chattel mortgage averred in the complaint, “ but alleges in relation thereto that said chattel mortgage is wholly void for want of consideration, and that said chattel mortgage was procured to be. signed and executed by the defendant by means of fraudulent and false representations of the plaintiff, its agents and servants, made to him, the said defendant, at the time of the execution of said chattel mortgage by the plaintiff, its agents and servants, as aforesaid.” The answer further denied the existence of any indebtedness. Upon the trial the plaintiff produced and proved the chattel mortgage and the sale which was had thereunder, the costs and expense's of the foreclosure, the amount of the bid, and rested. The defendant thereupon sought to prove conversations had with an agent of the plaintiff prior to the execution of the chattel mortgage. Plaintiff objected to such proof upon the ground, among others, that its purpose was to vary the agreement contained in the chattel mortgage, and also upon the ground that the answer was insufficient to authorize proof of fraud or misrepresentation in procuring the execution of the chattel mortgage. The court overruled the several objections which were taken, to
In this connection the answer admitted the execution of the chattel mortgage, as such, and the evidence of the defendant supported such admission. The chattel mortgage recites that the defendant had bargained and sold the property and that he “ will forever warrant and defend the right, title and interest” of the plaintiff in the-goods thus sold. The mortgage is in the usual form, contains the defeasance clause for the reversion of the title upon payment of the debt secured to be paid, and also provides that judgment maybe forthwith entered against the defendant for the amount of any deficiency which may arise upon a sale of the property ^pursuant to the terms of the instrument. The mortgage contract, therefore, is conclusive of the fact that the defendant was the owner of this property and for purposes of securing the payment of a debt he executed the mortgage. Parol testimony was, therefore, inadmissible to vary or change the terms of the written agreement. (Stowell v. Greenwich Ins. Co., 163 N. Y. 298 ; Thomas v. Scutt, 127 id. 133.) Objection was interposed to the testimony when offered, based upon this ground." Such objection was overruled, the testimony was admitted and such issue was submitted to the jury, to which an exception was taken. The point was, therefore, clearly raised. Evidence that the defendant was not the owner of the property at the time of the execution of the chattel mortgage was-in direct contradiction of its specific provisions upon such subject. Hot only did it recite that he bargained and sold such property as
It follows that the judgment,and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred. '
Judgment and order reversed, new trial ordered, costs to appellant to abide event.