5 Barb. 516 | N.Y. Sup. Ct. | 1849
I think the learned justice, before whom this cause was tried at the circuit, decided correctly in receiving parol evidence to show when the mortgage held by the plaintiff on Butcher’s horse became due. The defendant’s counsel had previously given some evidence in regard to that mortgage, and this objection was not made till the plaintiff’s counsel had also made several inquiries in regard to its contents. The defendant’s counsel could not then object to proving the single fact when the mortgage fell due, without also objecting to all the previous evidence of its contents., I think it must be held that both parties had acquiesced in receiving parol evidence of the mortgage. As to the materiality of the evidence, it was certainly proper to prove when the mortgage fell due, with a view to, ascertain whether the plaintiff had obtained an absolute title to the property mortgaged. (Pierce v. Patchin, 12 Wend. 61.) I concur also entirely in the decision made at. the circuit, that the receipt of the 23d of March, upon its face,, showed a contract of bailment, and not a sale. (Hurd v. West, 7 Cowen, 752.), It was. not at all like
I do not understand that the judge at the circuit decided, as the defendant’s counsel supposes, that the goods were delivered upon the terms mentioned in the receipt • though there is certainly one expression in the charge from which, standing alone, that would seem to have been said. On the contrary, the whole charge taken together, shows that that question was properly submitted to the jury as a question of fact for their determination.
But there is another point made by the defendant’s counsel, that seems to me to be well taken. The court was asked on the trial to charge the jury, that if they should find, from the evidence, that Butcher had any goods of McLean, or of Morss & McLean, for which he gave his note, which were levied on by the defendant, the defendant must have a verdict for the value of those goods. The court refused so to charge, and the defendant’s counsel excepted. I think the judge should have charged as requested. There was proof tending to show that goods had been purchased of McLean "when a partner of Morss, a part of which had been replevied; and it was for the jury to find whether any of the goods, when replevied by the plaintiff, belonged to any other person. If they should find any of the goods belonged to McLean or to Morss & McLean, the defendant would have been entitled to a verdict for such goods, and to a return of the property.
I think this question should have been submitted to the jury ; and it not having been so submitted, a new trial should be granted; costs to abide the event.
New trial granted.
