113 N.W. 872 | N.D. | 1907
This appeal is from a judgment rendered by the district court of Ramsey county pursuant to a verdict directed in respondent’s favor. The action was brought to recover damages on account of appellant’s refusal to make a levy under a warrant of attachment upon certain personal property claimed to be the property of one John H. Jones, who was defendant in an action commenced by this respondent in the district court of Grand Forks county, in which action such warrant of attachment was issued. The principal question involved is as to whether Jones, in so far as his creditors were concerned, was the owner of this merchandise (being a stock of confectionery) at the time the warrant of attachment came into the hands of the appellant. At the close of plaintiff’s case in chief, defendant moved for a directed verdict in his favor, which motion was denied, and at the close of all the evidence plaintiff moved for a directed verdict in his favor, which motion was granted. Numerous assignments of error are set forth in appellant’s brief, but it will be unnecessary to consider them separately. They relate to the court’s refusal to grant appellant’s motion for a directed verdict, the granting of respondent’s motion, and the rulings of the trial court on the admissibility of certain evidence.
Whether it was error to deny appellant’s motion for a directed verdict it is unnecessary for us to decide, as such ruling, if error, was waived by appellant by thereafter submitting evidence and by not renewing such motion at the close of all' the evidence. Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000; Colby v. McDermont, 6 N. D. 495, 71 N. W. 772; Tetrault v. O’Connor, 8 N. D. 15, 76 N. W. 225; Bank v. Bank, 9 N. D. 319, 83 N. W. 221; Ward v. McQueen, 13 N. D. 153, 100 N. W. 253.
Was it error to grant plaintiff’s motion for a directed verdict? Appellant’s counsel earnestly insist that this question must be answered in the affirmative, for two reasons. Fie contends (1) that there was no evidence showing that Jones, the defendant in the attachment suit, owned any of the property in question at the time
Was the evidence sufficient to show ownership of the property or any portion thereof in Jones on the date such warrant was placed in appellant’s hands? If so, it was defendant’s duty to levy said warrant of attachment. We think the evidence was amply sufficient to show such fact, unless Jones was divested of his ownership by the foreclosure sale to Wineman, and this calls in question the validity of such foreclosure sale, and whether all the property transferred to Wineman at the foreclosure sale was covered by the mortgage. Respondent’s counsel contend that the mortgage was void as to the creditors of Jones, and that as a necessary consequence the foreclosure sale was also void, and did not operate to divest Jones of his ownership in the property as against them. Appellant’s counsel contend, first, that such mortgage was valid; and, second, that, even though it were void as to creditors of Jones, still it was valid as between the parties, and the taking possession of the property by the mortgagee and the foreclosure and sale thereof under the mortgage pursuant to the power of sale contained therein, before being attacked by creditors operated to divest the mortgagor of ownership and transfer the title to the purchaser, and that the only remedy, if any, left to the creditors of the mortgagor, was to pursue the proceeds
Having arrived at the above conclusion, it is unnecessary for us to determine the question as to the validity of the mortgage referred to,'but we will briefly notice this point. As before stated, it was given to secure the payment of 48 promissory notes of $25 each, payable on the I Oth day of each month, and covered a stock of confectionery and fixtures sold by the mortgagee to the mortgagor. By a stipulation in the mortgage, the latter was permitted to remain in possession and to make sales in the ordinary course of business, at retail, but no provision was contained therein requiring the net proceeds of such sales to be applied upon the mortgaged indebtedness. It permitted the mortgagor to conduct the business in every respect the same as if such mortgage was not in existence. He was permitted to sell for cash or on credit, at his option, and was not required to render accounts of the business to the mortgagee, nor, what is still more fatal, was he required to turn over any portion of the receipts from sales other than the monthly payments of $25 aforesaid to be applied upon the mortgage debt. Therefore, the inevitable result of this mortgage was to hinder and delay the mortgagor’s general creditors. That the same was fraudulent in law and therefore voidable as to creditors we entertain no doubt. This is too apparent for discussion. The
It is contended by respondent that the mortgage did not cover all the stock transferred to Wineman, and that to the extent of the goods not so covered no title was acquired by him, but that the same was on February 14th still the property of Jones, and hence subject to attachment by his creditors. This contention is based upon the theory that some of the goods were additions made to the stock after the mortgage was executed, and that by the terms of such instrument these additions were not included; but an examination of the mortgage as contained in the printed abstract convinces us that there is no merit in this contention. It was clearly the intention of the parties that additions to the stock made for the purpose of replenishing the same should be covered by the lien of the mortgage, and such intention will be given effect. This is well settled. Ayres v. Sundback, 5 S. D. 31, 58 N. W. 4; Armstrong v. Ford, 10 Wash. 64, 38 Pac. 866; Cadwell v. Pray, 41 Mich. 307, 2 N. W. 52.
• It is also urged by respondent’s counsel that the attempted fore-, closure sale was void, and hence did not pass the title of the property to Wineman, for the reason, as stated, that Roble, the mortgagee, commenced an action against Jones to recover the purchase price of the property, and in such action caused an attachment to be levied upon the same, thereby waiving her right under the mortgage, and, further, that such property at the date of the sale was held under such attachment. The record is somewhat vague and uncertain as to the facts regarding these attachment proceedings, and we are unable to determine just what took place. It clearly appears, however, that immediately upon taking possession of the property under the mortgage Roble proceeded to advertise and sell the same in the usual manner pursuant to the power of sale contained in the instrument, and even if she caused the property to be seized under the writ of attachment, which we do not determine, her subsequtnt conduct shows that she must have released and abandoned such levy, and in any event it appears to be well settled that she did not by such attachment waive the lien of the mortgage. Byram v. Stout, 127 Ind. 195, 26 N. E. 687; Thurber
This brings us to appellant’s assignments of error relating to the rulings of the trial court as to the admissibility of certain evidence. By these rulings certain witnesses were not permitted to answer questions propounded to them by defendant’s counsel. No offer of proof was made, and it does not appear that defendant was in any way prejudiced by such rulings, even conceding that they were erroneous. Hence error cannot be predicated thereon. Halley v. Folsom, 1 N. D. 325, 48 N. W. 219; Mordhorst v. Telephone Co., 28 Neb. 610, 44 N. W. 469.
Certain evidence was admitted over appellant’s objection that the same was not proper rebuttal testimony, and appellant assigns error thereon. It is unnecessary for us to decide whether defendant’s objections were well founded, as an appellate court will not reverse the trial court on account of receiving evidence out of its proper order, except in a clear case of abuse of discretion. No such abuse of discretion is disclosed by the evidence. Petersburg School District v. Peterson, 14 N. D. 351, 103 N. W. 756; State v. Werner (N. D.) 112 N. W. 60. It is unnecessary for us to notice these assignments further.
For the foregoing reasons, the judgment appealed from must be reversed, and a new trial ordered.