100 F. 553 | 2d Cir. | 1900
(after stating the facts as above). The first contention of tke plaintiff in .error is that the chattel mortgage was void as against creditors of the mortgagor, and could not pass any title to the mortgagee, because such mortgage was made to cover "all stock of groceries, wines, liquors, and cigars,” and because there was an understanding or agreement .between mortgagor and mortgagee that the mortgagor was to continue selling such stock in the course of his business, and to apply the proceeds to his own purposes. Such an agreement would, of course, make the mortgage void as against creditors; but where, as in this case, such an agreement is to be spelled out by ascertaining what was the intent of the parties not expressed in the instrument, the ascertainment of such intent is a question of fact. That question the court left to the jury, and the real contention of plaintiff in error is that there was no conflict of evidence, nor of inference, and that therefore the court should have instructed the jury that there was a fraudulent intent to make such an agreement. The mortgage itself contained no agreement of the kind, and Ward, the person who acted for the plaintiff, expressly testified there was no agreement or understanding between plaintiff and Brizzolari that he was to be permitted to sell any of the mortgaged property while he was in possession, and that nothing was ever said about it at any time between witness and Brizzolari. The latter was not asked the specific question. In view of this evidence, it was clearly a question for the jury to determine whether, from the fact' of such subsequent selling with the knowledge of the plaintiff, and from the admission of Ward that he supposed the mortgagee would continue selling and replenishing, the making of such an agreement was to he inferred, especially in view of the further fact that subsequent to the filing of the mortgage, and before levy, Brizzolari paid on- account of the mortgage snore tiran he received from the sale of “wines, groceries, and cigars.”
Defendant further contends that the burden of proof as to absence of fraudulent intent rested upon plaintiff. Inasmuch as there was no request to instruct the jury as to the burden of proof, and no exception to the charge in that particular, the question is not before this court.
There are several exceptions to the admission of testimony, and one to the refusal to direct a verdict, which raise the only other question that has been argued here. The property covered by the mortgage was apparently much in excess of $2,000, remaining- due upon the mortgage. In order to prove its value, the only witness called was Brizzolari himself, whose business was that of a restaurant keeper. He was not an expert qualified to speak with any degree of. exáctness as to the value of tables, chairs, crockery, table linen, siiverware, counters, and glass cases, nevertheless, as to such articles of everyday use, which he had repeatedly bought, he must nec
