59 Neb. 593 | Neb. | 1900
On April 10, 1896, John R. Moneyhan executed to McCord-Brady Company a demand note for $194.31 and a chattel mortgage on his stock of merchandise in the village of Craig. Earl Stanfield, an agent of the mortgagee, took immediate possession of the mortgaged property, and, with Moneyhan’s consent, proceeded to sell the same in the usual course of trade. On April 13, 1896, Charles H. Miller, another agent of McCord-Brady Company, went to Craig, and, with the assistance of Moneyhan, made an invoice of the stock. A day or two
“Craig, Neb., April 13,1896.
“This is to certify that according to the tenor of one certain mortgage given by me to McCord-Brady Company I grant and give unto Charles H. Miller, their agent, the full possession and right to sell the stock of goods described in said mortgage, the proceeds of said sales to apply to the discharge of their claim. Signed this 13th day of April, A. D. 1896. J. R. Moneyhan.”
We can not agree with counsel for the defendants that this document, standing alone, necessarily implies a waiver by Moneyhan of his right to have the goods sold according to the terms of the mortgage. The course pursued by the trial court was correct. The instrument was properly submitted to the jury to be read in the light of the circumstances surrounding the parties at the time of its execution. The extrinsic evidence being contradictory, the question could not have been properly determined by the court.
The court instructed the jury as follows: “You are further instructed that to justify the private sale of the stock of goods by McCord-Brady Company to H. H. Smith & Co., the waiver by Moneyhan of the conditions of sale expressed in the mortgage must be clear and unequivocal,- and must be established by a preponderance of the evidence.” The giving of this instruction was prejudicial error. The gist of the action being the alleged
Reversed and remanded.