33 Barb. 24 | N.Y. Sup. Ct. | 1859
By the Court,
The plaintiff Monnot sued Ibert the defendant, in the city court of Brooklyn, to recover the possession of .a horse and wagon. The title under which the plaintiff claimed the property was a chattel mortgage covering this and other property, made by Peter Scharnagle,
The defendant purchased the horse of the partners, Scharnagle & Co. in 1856; the wagon which is the subject of the action was sold some time in 1857 to one Wells, by a receiver appointed in a suit apparently to close the partnership, and by Wells it was sold to the defendant.
This action was brought for the unlawful detention of the property, and not upon any allegation of an unlawful taking, and it was therefore necessary for the, plaintiff to prove a demand and refusal to deliver the property, in order to sustain the suit. The first question in the case arises upon a motion made for a nonsuit, on the ground that no demand and refusal was proved. The city judge erred in denying this motion. The only testimony upon this point was that of the plaintiff himself, who said that he told Ibert he was sorry he, Ibert, bought the horse and wagon, because they belonged to him under the mortgage; that he must have his money or take the horse and wagon; and he then adds that the defendant refused to let him have either. If this were all the evidence it might be explicit and distinct to prove a demand and a refusal. But the witness was cross-examined, and gave every thing which was said in that interview. The precise language stated to have been used by him was, •“ I ' shall have to take them from you, if I cannot get my money any other way.” This expressed a purpose to make a demand in future, and that apparently only in a certain contingency, and not a plain and unequivocal request for the property, or its delivery there or then. This is the difficulty with the case; it is evidence of a demand as much as of a refusal, which is wanting. The answer of Ibert, as given by the witness in his cross-examination, was, “ I don’t care; I will give you the horse at any time, for Burlde is good for three such
One or two other points were argued, which it may be proper briefly to notice. The defendant claimed an estoppel against the plaintiff, to arise out of his acquiescence in the purchase of the horse by the former. The evidence, however, was not sufficiently distinct to show that the plaintiff was informed that the defendant was purchasing the particular horse now in controversy, to raise the question. All that
The evidence disclosed the fact that the plaintiff’s mortgage, although apparently and expressly given to secure a sum certain, was in fact made to secure him for future advances to be made and responsibilities incurred for the benefit of the mortgagors. The precise nature or extent of the agreement upon which the mortgage was given, and which was entirely verbal, is left somewhat in doubt, and there is some obscurity as to the liabilities or advances for which the plaintiff claims to hold it. It is well settled that a mortgage may be given to secure future advances and liabilities, and that it may be in the form of .a security for the payment of a certain sum, leaving the true nature of the transaction to be shown by paroi proof. Questions as to the rights of subsequent intervening incumbrances under such mortgages have, however, been much mooted. It is agreed in all the cases that such a mortgage will cover subsequent advances only to the amount specified in the condition, and of which therefore the registry gives notice. In Brinkerhoff v. Marvin, (5 John. Ch. 326,) Chancellor Kent expressed the opinion that where a subsequent judgment or mortgage intervened, farther advances after that period could not be covered. This certainly must be taken, as it probably was intended, with the qualification that the first mortgagee had notice in fact of the intervention of such subsequent incumbrance. In the Bank of Utica v. Finch, (3 Bart. Ch. 293,) Chancellor Walworth says that a mortgage may be taken as a general security for balances which may be due from time to time from the. debtor, and that in the form of a mortgage sufficiently large to cover the amount of the floating debt intended to be sectired thereby. There might be some discrepancy in the results to which these opinions would lead. A close examination of the two
Lott, Emott and Brown, Justices.]
The judgment must be reversed and a new trial ordered in the court below ; the costs to abide the event.