12 Colo. App. 529 | Colo. Ct. App. | 1899
In this suit the mortgagees and attaching creditors are contesting their title to a lot of personal property which belonged to the Strater Thorp Drug Company, a corporation doing business in Durango and at other points in the state. Up to the early part of July, 1893, the drug company were the undisputed owners and in possession of the property. In stating the facts on which we predicate our judgment we shall follow the evidence produced by the mortgagees in support of their title
“ Also, that until said indebtedness, and every part thereof, and all interest, as aforesaid, shall be fully paid, said party of the first part, its successors or legal representatives, will not sell or dispose of, or' attempt to sell or dispose of, the said property, goods and chattels, nor any part thereof.” There was also another clause found later in the instrument substantially reciting an agreement that, until default shall be made b.y the drug company in the performance of some of its conditions or agreements, the said drug company “ may keep, retain and use the said goods and chattels.” After this execution of the instrumient and on Sunday it was turned*532 over to the attorney representing the bank for inspection and ' to determine whether in all respects it was legal, regular and sufficient in form. The attorney made some question about the words “ retain and use,” and to avoid any ultimate question respecting the validity of the instrument growing out of that feature, its erasure was requested. The evidence clearly shows that the officers of the drug company assented to their elimination, though whether this was done prior to the time that the instrument was given to the notary for acknowledgment is not clear. It is, however, very evident from the testimony, at least it is clearly established by the weight of it, and to our judgment satisfactorily juoven, that the words were erased before the delivery of the instrument. Strater disagreed with the other witnesses respecting some of the pivotal matters which we state. On Monday, the 10th of July, and about noon of the day, the mortgage was returned to the Strater Drug Company, having only been temporarily out of their possession for the purpose of examination, and at that time Strater formally delivered it to the mortgagees. We concede that Strater denied this ; denied any consent to the erasure of the words “retain and use,” asserted a prior delivery of the instrument, and insisted that he did not have it in his possession, or deliver it on Monday noon to the mortgagees; but he is so completely contradicted by the evidence of every other witness in the case who knew anything about it, and there is such an inherent improbability in the story which he tells, and we are so thoroughly impressed with its inaccuracy that, like the jury, we do not hesitate to disregard it. We therefore on the record as it stands decide the mortgage was not delivered until the noon of Monday, the 10th, that the words “retain and use” had been erased by consent of the mortgagors before this time, and that on the noon of that day the drug company delivered the instrument to the mortgagees for the purpose of securing their debt. Concurrently with the delivery of the instrument the mortgagees took immediate possession of the property, remained in possession for some time, when the appellant here levied*533 the attachments on the goods and attempted to make the debts by the levy. The mortgagees replevied. The attaching creditors defended on various grounds, and the verdict of the jury being against them bring the case here by appeal. So far as we are able to discover there are no other important matters of fact suggested by the record, and enough has been stated to exhibit the facts in dispute and to enable us to decide the various propositions on which the appellant relies to reverse the judgment.
The appellant presents many questions of greater or less importance. As we look at it there are but a very few of sufficient magnitude to justify the reversal of the ease if we should accede to his contentions. We shall therefore only notice those which would, if sustained by proof, and warranted by the law, justify a reversal, paying no attention whatever to the minor propositions which we do not regard as of vital significance. The appellant’s counsel have very properly, in a manner which aids the court very much in formulating its opinion, stated the principal propositions on which they rely.
At the time of the trial, the mortgagees produced the instrument through which they derived title. This was the mortgage to which we have referred. They offered no evidence respecting the authority of the president and secretary to execute the instrument by way of proof of a resolution of the directors to that end. The appellant strenuously insists that this is a manifest error. Whatever might be the rule under other circumstances we are very pronouncedly of the opinion the appellant is in no condition to raise the question and the matter was never so presented to the trial court as to compel the mortgagees to offer proof of the authority of the officers of the company to execute such an instrument where what was offered was regular on its face and under the seal of the corporation. There may be some circumstances under which this proof must be made by the party who produces an instrument of this sort when it covers the entire property of a corporation, and its execution, delivery and enforcement will result in the absolute destruction of the
These and many other authorities which might be cited are clear to the point that an instrument regular on its face and signed by the proper officers under the seal of the corporation presumptively was executed under authority delegated in the proper manner and by the proper powers to the officers. Whenever it is desired to attack the regularity of an instrument of this description the contestants must tender
The validity of the instrument is likewise attacked because of the presence of the words “ retain and use ” as originally found in it. We shall enter into ho extended discussion respecting the point urged with some apparent confidence by counsel nor support the judgment by an argument based on the proposition that because it provided that the company would not sell or dispose of the property these words in no manner limited, controlled or obviated it, and that the restriction was not removed by the insertion of the words “ retain and use.” It is not clear that the words “ retain and use ” could be construed as operative to give the mortgagors power of disposition in the face of that direct covenant not to sell. Since this, however, might be under some circumstances a debatable question, we prefer to put our decision squarely on the ground that the words “retain and use ” were erased prior to delivery with the consent of the parties executing it. For the purposes of this appeal, the words “ retain and use ” are not in it. We do this even in the face of the general practice which appellate courts pursue, which is to base a decision on a legal proposition respecting which they have very little doubt rather than to rest it on a matter of fact which is in dispute in the record. Since, however, we conclude the jury must have found this fact with the mortgagees in order to render the verdict, and since we are thoroughly convinced the erasure occurred before delivery with the consent of the officers, we put the decision on that precise ground. The record clearly shows in our judgment the words were erased before the instrument became a valid one. If this is true, it is folly to argue the question whether, if the words were in at the time the mortgagees took it and went into possession, they were broad and ample enough to overcome the specific limitations found in the prior part of the security.
The mortgage appeared to be for more than the money which had been advanced by the mortgagees to the drug
The only other point which we deem it necessary to consider and decide respects the instructions which the court gave and the error which the parties have predicated on that matter. Before proceeding to discuss it we will express some general principles which have been established by the appellate courts of this state. Since the amendment of the code it is wholly unnecessary to take exceptions to instructions because the legislature expressly provided that no exceptions need be taken. Notwithstanding this fact it has been decided by the supreme court, which we are bound to follow, that notwithstanding this provision the complaining parties must show that they objected to the giving of the instructions, and at the time, raised the questions which, they urge as error, having given the trial court an opportunity to correct the thing which is complained of. This much has been very clearly adjudged. It is equally well settled that the judgment will not be reversed because of instructions which are erroneous and technically faulty, if as a whole the matter in dispute was clearly and plainly put to the jury, and they were rightly instructed on the main questions. -We are inhibited by statute from reversing judgments which are apparently right, where the error committed affects no substantial rights of the parties. The force and effect of this statute has been repeatedly recognized by the courts. Pike v. Sutton, 21 Colo. 84; Wray v. Carpenter, 16 Colo. 271; D. & R. G. R. R. Co. v. Ryan, 17 Colo. 98 ; Williams v. Williams, 20 Colo. 51; Coe v. Waters, 7 Colo. App. 208; Patrick Red Sandstone Co. v. Skoman, 1 Colo. App. 323; Salazar v. Taylor, 18 Colo. 538.
"We have cited these cases because in them are found full support for the doctrine which we announce, and we believe they are adequate authority to support this opinion. The instruction complained of, and in fact the only one which, as we view it, is subject to grave criticism, or which under any circumstances would warrant a reversal of the case, is one
Wherever it is a matter of statute this whole question depends on the enactments. In this state we have a statute respecting trials by juries. It is section 187 of the code. That section provides that the instructions offered or given by the court must be filed with the papers and with the indorsement indicating the action of the court, if they are to be taken as part of the record without being made such by the bill of exceptions. This statutory provision undoubtedly governs, and we have a right to go to the record to find out what instructions were given. The appellants in any cause have always the right to refer the court to the instructions found in the record and printed in the abstract and thereon assign error and compel the appellate court to review. But it will be noticed that this statutory provision requires that these instructions must have an indorsement indicating the
There is considerable argument directed to the point that the instructions are not harmonious and are totally inconsistent, which would compel the court to reverse the case. What we have already said respecting the condition of the record is a sufficient answer to this contention. But beyond all this we do not believe when the instructions are analyzed and the charge taken as a whole, that there is the inaccuracy of
We have given this case very considerable and careful attention. It is the second time that this mortgage has been before the court for consideration, and this circumstance, combined with the very earnest, elaborate and able briefs of counsel, have led us- to exercise unusual care in the determination of this appeal. We are free to admit that some of our positions are taken on debatable grounds. Notwithstanding this fact we are thoroughly and well satisfied our conclusions are-correct on the record that the verdict of the jury has brought about equitable and fair results and done substantial justice between the parties, and the judgment which has been entered thereon ought therefore to be affirmed.
Affirmed.
Wilson, J., not sitting.