2 S.D. 480 | S.D. | 1892
The respondent bank, plaintiff below, brought this action against appellant, defendant below, to recover possession of a stock of goods, cl aiming the same under a chattel mortgage made to it thereon by M. B. Dean & Co., who it is conceded were the owners of the goods. The mortgage was set out in the complaint. Appellant was the sheriff of Lincoln county, and claimed to hold the goods under an attachment, and that respondent’s mortgage was void for the reason that it could not be reasonably gathered therefrom who was the mortgagee therein, and that it was fraudulent and void
At the commencement of the trial appellant objected to the introduction of any evidence under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action, and the overruling of this objection is the first error assigned. The objection was based upon the fact, as appears by argument of counsel, that the complaint, while pleading the chattel mortgage as the source of respondent’s possession, did not allege default in any of its conditions which would explain or justify such possession. The complaint alleges that, on and prior to November 9bh, respondent was in and entitled to the possession of the goods in controversy. Appellant concedes that if respondent had stopped with that allegation, relying upon
Upon the trial plaintiff offered in evidence a chattel mortgage purporting to be from M. B. Dean & Co. to ‘ ‘The First National Bank,” as the Exhibit A referred to in the complaint, and made a part thereof. Defendant objected on grounds which have already been considered, and for the further reason ‘ ‘that the mortgage on its face does not show that it is a mortgage to the plaintiff, as alleged in the complaint;” the particular defect being that the mortgagee therein named was “The First National Bank,” and not “The First National Bank of Canton,” which was the plaintiff. This objection being stated, the plaintiff asked, and the court allowed, that it might make
The sixth assignment is ‘ ‘thai the court erred in not permitting the defendant to show that prior mortgages had been made and held by the plaintiff on this same stock of goods, and that the mortgage in question was a continuation of a systamatic scheme to defraud creditors.” This and the eighth, ninth, and tenth assignments must be considered together, as there was no ruling of the trial court upon the subject of the sixth, except in connection with the subject of the others. Together they present the question of error in rejecting defendant’s offer of testimony, appearing in appellant’s abstract, of which an ‘ extract is given hereinafter. It may be proper to observe,
We will assume, as the meaning of the abstract, that at that point in the trial respondent offered to prove the several matters and things alleged in so much of his answer as was indicated in the “note, ” together with the additional offer as to renewing former mortgages, and the taking out of the mortgagor’s exemptions and goods with which to pay their indebtedness to F. M. Dean. We think the court was justified in rejecting this offer, on the ground that, of the many things included in it and proposed to be proved, a part of them, at least, were immaterial and inadmissible. The rule is thus stated in Thompson on Trials, § 678: “Where a tender of evidence is made to prove certain facts, some of wrhich are admissible and .others inadmissible, the offer is properly rejected as a whole;” but as this ruling seems to be an important one in the case, we
Lefler v. Field, 52 N. Y. 621, was an action for the price of barley. Defendant answered that the barley was bought by his agents; that plaintiff represented it good, first quality, and merchantable; that the agent relied upon such representation; that the barley was not merchantable, and that plaintiff knew it. The court of appeals held the answer worthless, since it omitted two essential elements of fraud; (1) Plaintiff’s intent to deceive; and (2) that defendants were in fact deceived. In Slaughter v. Gerson, 13 Wall. 379, Mr. Justice Field, in speaking of the requisites of a misrepresentation to make it fraudulent, says: ‘ ‘It must be a representation upon which he [the complaining party ] relied, and by which he was actually misled to his injury.” In Taylor v. Guest, 58 N. Y. 262, the court says: “In a legal sense, a person is not damaged by a false representation by which he is not influenced. It is incumbent upon the party claiming to recover in an action for deceit, founded upon false representations, to show that he was influenced by them. * ' * * In all cases it is a fact which should be averred in the complaint, and must be maintained by evidence.” In Van de Sande v. Hall, 13 How. Pr. 458, an answer was held bad because it omitted £ ‘to allege that the defendant was misled by the representation or that his belief in the truth of the representation induced him to enter into the lease.” In Goings v. White, 33 Ind. 125, it is said that to make fraudulent representations actionable the complaint “must contain an averment that the plaintiff relied upon the representations. The want of such averment cannot be supplied by a recital of evidence which might justify a presumption that the representtions were relied upon, unless such evidence be conclusive of the fact.”
Another reason why the offer was properly rejected is this: The sole question to which the offered evidence could apply was, was this chattel mortgage fraudulent as to Harwell? The
Appellant’s proposition also included an offer to show that
The seventh assignment is as follows: “The court erred in not permitting the defendant to show that at the time the goods were turned over to the plaintiff by M. B. Dean they were turned over for the protection of Dean & Co., and as a cloak to cover them up and protect them from the creditors of M. B. Dean & Co., and not to be subjected to the payment of the mortgage. ” It is difficu't to tell against what particular ruling of the court this charge of error is directed. Its characteristic words are the last words of the rejected offer which we have just considered, and, though the error is charged in a separate assignment, we find no other ruling which the assignment will fit. An assignment should point out the particular ruling objected to. It is not sufficient to complain that evidence of a certain general character, or tending to prove a certain condition of things, was admitted or rejected. An appellate court will not hunt through the record to find a ruling which the assignment will fit. If the alleged error is based upon the rejection of the offer already considered, it is sufficient to say that, even if a separate offer to prove that the goods “were turned over for the protection of Dean & Co., and as a cloak to cover them up,” should have been allowed, there was no error in rejecting it as a part of an entire offer, other parts of which
The only remaining assignment argued by appellant is that the court erred in directing a verdict for the plaintiff, and the following reasons are specified, which we notice seriatim: (1) “The mortgage on its face shows that it is a blanket, covering all the property of M. B. Dean & Co. of value of $4,300.” The mortgage as it appears in appellant’s abstract, is an ordinary chattel mortgage upon a stock of goods, with nothing to indicate their value, or that it covered all the property of Dean & Co. (2) M. B. Dean swears that the mortgage was made in form to cover all the goods as a cloak, when in fact it should only cover what was left in the Pattee block after two thousand dollars’ worth wTas taken out for the use of Dean & Co., and eight hundred and thirty-seven dollars’ worth for the use of F. M. Dean.” This is not M. B. Dean’s testimony, as we read it in the abstract. Read in the light of his evidence, as we have already seen, the reason should be stated thus: M. B. Dean swears that the mortgage was made in form to cover all the goods as a cloak, when in fact it should only cover what was left in the Pattee block after they had taken out their exemptions, and also paid from them their indebtedness to F. M. Dean, amounting to $837. .As we have attempted to show, such an agreement would not make the mortgage fraudulent. (3) “That the mortgage should not be recorded until divisions were made. ’ ’ The divisions referred to were the taking out of their exemptions, and the payment from their goods of their indebtedness to F. M. Dean, both of which they had a right to do, and of the doing of which Farwell could not complain, and we do not see how a few hours’ delay in recording the mortgage, or an agreement that it should be so delayed, could have affected Farwell’s rights or interests, his relations to the Deans or their property not being changed in the mean time. (4) “That it was agreed