63 P. 638 | Idaho | 1900
The respondent commenced this action to recover from the appellants the possession of seven thousand four Imndred and forty-one head of sheep and damages for their retention. Appellants answered, alleging the following facts: That the appellant L. C. Jones, sheriff of Lincoln county, as agent for the appellant the Evans-Snider-Buel Company, seized said sheep, same being known as “Boyd & Lifts’ sheep.” That said sheep were the property of, owned, and possessed by Boyd & Lifts, a copartnership composed of Frank W. Boyd and G. W. Lifts, subject to certain mortgage hens of the appellant, the Evans-Snider-Buel Company. That on October 27, 1898, said Boyd & Lifts executed to appellants the Evans-Snider-Buel Company a. mortgage on said sheep and other sheep to secure an indebtedness of $29,946.48 due said Evans-Snider-Buel Company from said Boyd & Lifts. Said mortgage was duly verified, executed, and acknowledged, and filed of record in the office of the recorder of Elmore county, on November 1, 1898, and copies thereof filed of record in the countieB of Ada, Owyhee, and Blaine in November, 1898, and that the respondent knew of the existence of that mortgage, and knew that said sheep were so mortgaged to said Evans-Snider-Buel Company. During the year of 1897 and 1898 said Evans-Snider-Buel Company advanced from time to time to said Boyd & Lifts upon loans, to secure which said Boyd & lifts, from time to time, executed mortgages on sheep owned by them in different parte of the state of Idaho, including the sheep to recover the possession of which this action was commenced by the respondent. One of said mortgages was executed June 11, 1898, to secure the sum of $82,072.21 upon forty-one thousand six hundred and fifty-four sheep. This mortgage was subject to other mortgages given by said Boyd & Lifts to said Evans-Snider-Buel Company on portions of said sheep. A number of mortgages were executed by said Boyd & Lifts to said Evans-Snider-Buel Company, all of which are set forth in the answer of the appellants. The mortgage under -which defendant Jones seized said sheep, executed October 27, 1898, is the last one executed between the parties, and covered
There is considerable evidence, both oral and documentary, including a large correspondence between Boyd & Litts on the one hand, and tsaid Evans-Snider-Buel Company upon the -other. The respondent, A. J. Knollin & Co., claims to have purchased said sheep from said Boyd & Litts on the fourteenth day of April, 1899. The contract of sale was in writing, signed by said Boyd & Litts and said Knollin & Co. Respondent took possession of the sheep in question, under said contract of sale, on the nineteenth day of April, 1899, some five or six miles east of Mountain Home, in Elmore county. The contract price was $18,771.40, $2,000 of which was paid April 14, 1899, and a draft for the balance ($11,771.40) "was delivered to said Boyd & Litts April 19, 1899, at which time Knol-lin & Co. took possession of the sheep in question. The sheep remained in their possession until May 4, 1899, when the sheriff of Lincoln county, the appellant Jones, seized the'same
The only important question of fact in this case, and to which the evidence pointed and was directed, is whether said sale was made by Boyd & Litts to Kuollin & Co. with consent of said Evans-Snider-Buel Company. There are many letters in the record from said Evans-Snider-Buel Company to said Boyd & Litts, during the existence of the prior mortgages, urging said Boyd & Litts to sell sheep covered by said mortgages in order to meet their obligations to said Evans-Snider-Buel Company secured by those mortgages. This evidence shows a willingness on the part of said moitgagee to have the mortgaged property sold by the mortgagors, said Boyd & Litts, and the latter did at different times sell quantities of the sheep iso mortgaged, accounting to said mortgagee for the purchase price of the sheep so sold. These letters were prior to the execution of the last mortgage, to wit, the one mentioned aforesaid, of date October 27, 1898. But a careful consideration of the evidence introduced before the jury at the trial, as well as the answer of the appellants, showed that this last mortgage, given to secure balances due upon the former mortgage-debts, and an advance made by the mortgagee to enable the mortgagors to carry the sheep mortgaged through the winter of' 1898 and 1899, was treated and regarded by the parties, to a certain extent at least, in the light of a continuing transaction. No notice was given said mortgagors by said mortgagee that sales of the sheep mortgaged were no longer to be made by the mortgagors or that the consent of said mortgagee to such sales, being made by the mortgagors was withdrawn.
It is argued on behalf of the appellants that the evidence does not show that after the execution of the last mortgage the mortgagee agreed or consented to any sale being made by said Boyd & Litts. On April 20, 1899, the following letter was written by the mortgagee to said mortgagors, to wit: “[Evans-
At the close of the plaintiffs evidence the defendants made a motion for nonsuit in the following words, to wit: “Defendants make motion for a nonsuit on the ground that the purchasers of the sheep and the agents of plaintiff examined the records, and knew of the mortgage, and purchased the sheep, and with knowledge they made this contract of purchase, and it is not claimed that the mortgage is paid or money ever tendered.” This motion was denied, and this action of the court is the ground upon which the appellants base their first assignment of error. This motion was properly overruled. Actual knowledge of the existence of the mortgage could not defeat the purchase or affect the rights of the purchasers, where
The second assignment of error relates to the introduction of certain letters from the mortgagee to the mortgagors, in which the said mortgagee not only advises the sale of the sheep mortgaged in lots, but insists upon such sales. These letters were introduced over the objection of appellants, who excepted thereto. It is argued that owing to the fact that these letters were written prior to the last mortgage, which was executed October 27, 1898, they were for that reason irrelevant, and this is the ground upon which their introduction was excepted to, as shown by the record. We think that these letters were proper evidence, and that their admission was not error. As heretofore stated, the parties all along treated the various mortgages and acts thereunder as one continuing transaction, and the answer of the appellants so treated them, and it was upon this ground that the trial court evidently admitted said letters in evidence.
The third assignment of error is based upon the ground that the evidence is insufficient to sustain the verdict. We cannot agree with the appellants upon this contention. What we have heretofore said disposes of this alleged error, and makes it unnecessary to further review the evidence. Suffice it to say that we have given our most careful attention to the evidence, and think that it sustains the verdict.
The fourth assignment of error is that the verdict' is too vague and indefinite to support the judgment. We do not think so. It is, however, unnecessary to enter upon a discussion of this question, for the reason that the record does not show that this question was raised before entry of judgment. In Stock Co. v. Delamue, 3 Idaho, 1017, 29 Pac. 97, this court
The fifth assignment of error is based upon alleged errors in giving instructions to the jury. We have carefully examined the instructions, and think that they, in the main, gave to the jury the law of the case correctly. The instructions were to the effect that the mortgagors, with the written consent of the mortgagee, could sell the mortgaged property so as to relieve it of the mortgage lien; that consent to sell a specified portion only did not give consent to sell other portions not specified. And, at the request of the appellants, the court instructed the jury that a sale of any portion of the mortgaged chattels by the mortgagors, without the written consent of the mortgagee, would be void. This is not the law, as such sale would convey the title subject to the mortgage lien.
The court also instructed the jury, at the instance and request of the appellants, that “if the mortgagor is permitted to
The last instruction is, apparently, in conflict with the main instructions, but such conflict is one in appearance only. Such consent on the part of the mortgagee to a sale by the mortgagor waives the lien of the mortgage to the extent of the sale so made, but does not invalidate the mortgage, or waive the lien thereof, as to the unsold mortgaged property. This instruction being asked by the appellants, they cannot now be heard to complain thereof.
The instruction that the sale of any portion of the mortgaged property by the mortgagors, without the written consent of the mortgagee, is void, is erroneous, as above stated; but, being requested by the appellants, they will not be heard now to complain, and especially so as it could and did do the appellants no harm. The verdict cannot be disturbed on account of said instructions. Whatever error was made in giving the instructions was in favor of, and not prejudicial to, the appellants.
The appellants contend that their motion for a new trial should have been granted because they had newly discovered evidence. We have carefully examined the affidavits of the witnesses used on the motion for new trial, and think that the so-called newly discovered evidence is, in the main, cumulative, and that none of it was beyond the reach of the appellants, who, by proper diligence, could have produced it at the trial. The affidavits do not show such surprise as will warrant the granting of a new trial. We think that the district judge did not, in denying the motion for a new trial, abuse that discretion vested in him by law, and we are not warranted in reversing the said order upon this ground.
Appellants contend that the verdict should be set aside, and a new trial granted, because women were drawn upon a regular panel of the jury. It is argued that women are not competent jurors in this state. Conceding this to be the law, can we re