| Ill. | Feb 14, 1898
delivered the opinion of the court:
Appellee recovered a judgment against appellant, in an action of trover, in the circuit court of Cook county, for $275. On appeal the Appellate Court affirmed that judgment, but granted a certificate of importance, upon which this appeal is prosecuted.
Appellant was the owner of an apartment house in the city of Chicago, which he had leased to a man and his wife at a certain rental per month. The tenants having abandoned the premises but leaving certain household goods therein, and being in arrears for rent, the appellant seized the goods under a distress warrant. The furniture had been purchased by the wife (who, with her husband, was a tenant in the property,) from appellee, a furniture dealer, for $625, on the 27th day of February, 1894, in payment for which she gave her promissory note of that date, secured by chattel mortgage on the furniture. Appellee attempted to seize the property under that mortgage. Several conferences were had between the parties after the tenants abandoned the premises, which finally resulted in appellant refusing to allow appellee to take the goods, and he proceeded, under his distress warrant, to sell them. At- the sale under the distress proceeding the property was bid off for $67.60.
The defendant insisted, upon the trial, that the mortgage under which the plaintiff claimed was illegal and void under section 2 of the act regulating foreclosure of chattel mortgages, (Starr & Curtis’ Stat.—2d ed.— p. 2773,) on the ground that it was upon household goods and not joined in by the husband of the mortgagor. The court ruled against him on this contention, both in admitting the mortgage in evidence and refusing instructions asked to that effect. That ruling is assigned for error. It is true that the articles described in the mortgage are such as may be devoted to household purposes and become household goods, but that fact alone does not bring them within the provisions of the statute. That a husband or wife may purchase such articles and give a valid chattel mortgage upon them in his or her own name to secure the purchase price, notwithstanding the statute, is clear. In such case the mortgage lien is created before -the property has become household goods, within the meaning of the statute. The object of the statute is to protect a husband or wife in the use and enjoyment of the family household goods against a profligate disposition thereof. It was not intended to operate as a means of hindering or preventing husbands or wives from purchasing goods for household purposes. The objection to the mortgage was properly overruled.
At the instance of the plaintiff the court instructed the jury as follows:
“If the jury, from the evidence, find, under the instructions of the court, the defendant guilty, then they may assess the plaintiff’s damages at the value of the property at the time the demand was made, (if the jury find, from the evidence, a demand was made,) with interest thereon at the rate of five per cent per annum from that time.”
That the giving of this instruction was error cannot be doubted. Under it the plaintiff might recover from defendant the full value of the property, although its claim against it amounted to no more than a mere nominal sum. The measure of its damages, if entitled to recover, was the amount of its mortgage lien remaining undischarged, not exceeding the value of the property. 1 Sedgwick on Damages, (8th ed.) sec. 82, note e; Sutherland on Damages, (2d ed.) sec. 139; David v. Bradley, 79 Ill. 316" date_filed="1875-09-15" court="Ill." case_name="David v. Bradley">79 Ill. 316.
It is said, however, that the error in giving the instruction was harmless, because the amount of the verdict was less than the mortgage indebtedness. The only proof offered as to the amount due on the mortgage was the mortgage itself and the admission of plaintiff that $160 had been paid thereon. The language of the mortgage as to the indebtedness is: “Provided, ahuays, that if the said first party shall pay to said second party the sum of $625, secured to be paid by the promissory note of the same date of said first party, payable to the second party in monthly installments of $25 first six months, $35 after first six months, each, respectively, on the first day of each succeeding month, until the sum of $625 is fully paid, with six per cent interest per annum thereon, then these presents shall be void, otherwise to remain in force.” The note here described was not offered in evidence nor was there any proof as to whether it was still held by the mortgagee. The amount of the verdict returned by the jury was $308, and, for some reason not appearing in the record, the plaintiff remitted $33 of that amount and took judgment for $275, which, on the proof made, was much less than the amount remaining unpaid on the mortgage. The evidence as to the value of the property was irreconcilably conflicting, that on behalf of appellee being to the effect that it was worth from $575 to $650, while that offered by appellant was to the effect that it was worth only from $50 to $80. In this condition of the evidence it is impossible to determine definitely upon what basis the jury fixed the amount of its verdict, and also upon what ground the plaintiff entered a remittitur, taking judgment for less than the verdict. But it seems most probable that in the conflicting state of the evidence the amount was arrived at from a valuation of the property, and if it can be said that the evidence sufficiently establishes the amount of the indebtedness to be $625, less the $150 paid, (leaving a balance of $475,) then, clearly, the instruction did no harm, the amount of the verdict and judgment not exceeding the value of the property, and being less than the amount of the mortgage indebtedness.
It is insisted, however, that in the absence of the note there was no proof of a mortgage indebtedness. We do not regard this position as tenable. It is doubtless true that the note was the best evidence of the indebtedness, but we do not think it can be said that it was the only proper evidence of that fact. Possession of the mortgage by the mortgagee was prima facie evidence that it still owned it. No objection was made to the introduction of the mortgage in evidence upon the ground that it was not accompanied by the note. No testimony whatever was offered by the defendant to the effect that the mortgage indebtedness had been transferred or in any way discharged. Under this state of the evidence we are inclined to hold that the uncontradicted evidence was, that there remained due and unpaid upon the mortgage, to the mortgagee, the sum of $475, and that no injury resulted to defendant by the giving of said instruction.
The defendant entered a motion to take the case from the jury at the close of plaintiff’s evidence, one of the grounds being the failure of the plaintiff to introduce the note in evidence. That motion can avail nothing in the consideration of the case here, both because it was not presented in the form of a written request to instruct the jury to find for the defendant, and because, after it was overruled, the defendant proceeded to offer in evidence certain testimony in his own behalf and did not renew the motion at the close of all the evidence. We do not, however, see that it could have affected the result here if it had been properly made.
Under all the facts and circumstances proved in the case we think the judgment of the Appellate Court should be affirmed. Judgment affirmed.