134 Minn. 438 | Minn. | 1916
The complaint in this action alleged that plaintiffs were the owners of a chattel mortgage made by one Kannemann, covering, among other property of the mortgagor, a one-half interest in certain hogs; that the
We treat the amended assignments of error as sufficient to present the questions raised. The first of these questions, is as to the effect of the judgment in the former action as a bar or an estoppel by verdict. The complaint in the former case, instead of alleging a conversion by defendant of the hogs covered by plaintiffs’ chattel mortgage, as does the complaint in the present case, charged that the mortgagor, without the consent of plaintiffs, sold a part of the hogs for the sum of $302.50, and delivered this money to defendant; that defendant, though knowing that the money came from the sale of the mortgaged hogs, converted it to his own use. The answer was a general denial. The evidence tended to show that the mortgagor sold the hogs to defendant, and received payment therefor. Plaintiffs endeavored to prove that the money from this sale was delivered back to defendant and converted by him. The case was submitted to the jury. One of the important questions litigated and submitted for decision was whether plaintiffs had consented to the sale of the mortgaged property. The court instructed that if there was no such consent, and defendant, with knowledge that the money was the proceeds of the sale of property covered by the'mortgage, converted it to his own use, the verdict should be for plaintiffs. Near the close of its charge, the court, after referring to the fact that the evidence showed that defendant himself purchased the hogs, gave this instruction: "I will charge you
It is thus seen that a vital issue in the present case, made by the pleadings, litigated and decided by the court, was not involved in the former action. This is the issue of whether defendant converted the hogs to his own use, that is, purchased them from the mortgagor with knowledge that they were mortgaged property. This issue was not made by the pleadings, litigated or submitted to the jury in the former case. On the contrary, the jury was explicitly instructed that such issue was not in the case. It follows clearly enough under our decisions that the former judgment was not a bar. Leonard v. Schall, 132 Minn. 446, 157 N. W. 723, and cases cited.
It is urged, however, that the former judgment operates as an estoppel by verdict on the other issue in the case, the question of fact as to whether plaintiffs consented to the sale of the mortgaged property. This contention is also disposed of by Leonard v. Schall, and the cases referred to therein. The language quoted from Neilson v. Pennsylvania C. & O. Co. 78 Minn. 113, 80 N. W. 859, and from Irish American Bank v. Ludlum, 56 Minn. 317, 57 N. W. 927, need not be repeated here. It is sufficient to say that a decision of this question was not necessary in the former case, as a verdict for. defendant would necessarily result from a finding that he did not convert the proceeds of the sale, without reference to how the question of consent should be determined. As a finding on this issue was not necessary to support the judgment rendered, such judgment does not operate as an estoppel by verdict on such issue.
The .next question arises from the contention of defendant that his motion to dismiss should have been granted, on the ground that the evidence did not show that the mortgagees had not consented to the sale of the mortgaged property. In other words, the claim is that the burden of proof was upon plaintiffs to negative consent. This position is untenable. There is no presumption that a mortgagee has consented to a sale of the mortgaged property by the mortgagor. The burden of proof on this issue was upon defendant. McNeil v. Finnegan, 33 Minn. 375,
Finally it is contended that the amount of the recovery should in any event be limited to one-half the value of the hogs converted, because the mortgage covered only an undivided half interest in the hogs described therein. But the court found that the animals converted by defendant were part of the one-half interest owned by the mortgagor and covered by the mortgage. There was evidence that the owner of the other half interest received his share of the animals, and it is undisputed that defendant paid all the money from the sale to the mortgagor. The finding is sustained by the evidence.
We have covered all of the assignments of error that are sufficient to raise any questions, with the result that we find no ground for reversal.
Order affirmed.