Schmidt v. Bender, 39 Kan. 437

Schmidt v. Bender

39 Kan. 437 | Kan. | 1888

The opinion of the court was delivered by

Johnston, J.:

This was an action of replevin, brought by George Bender against Peter Schmidt, George Laudner, James Lawson, and George Strobel, to recover the possession of two mules. George Bender and Reinhardt Borgert were both *438residents of Russell county, and on October 22, 1883, Borgert, being indebted to Bender in a considerable sum of money, executed a chattel mortgage upon the mules in question and other personal property, to secure the payment of the debt. The mortgage, which was duly filed in the office of the register of deeds, stipulated that the mortgagor should continue in the peaceable possession of the property until default should be made in the payment of the debt, or until the mortgagee should deem himself insecure. Afterward, Conradt Borgert, a brother of the mortgagor, obtainéd possession of the mules, and traded them to George Strobel, of Barton county, for a pair of horses. A search for the mules was instituted in Barton county by the mortgagor and mortgagee, and it was found that Strobel, to whom the mules were first traded, had sent them away from his place. It came to be known that the mules were mortgaged, and that an effort was being made to find them, and they were transferred from one to another of the defendants, apparently for the purpose of concealing them. The present action was then begun against all of the defendants, and under an order of delivery the possession of the property was regained. The trial resulted in a verdict and judgment in favor of Bender, and of this judgment the defendants below complain.

*4391. Mortgage, not invalidated by imperfect description. *438The first question presented relates to the validity of the chattel mortgage. It is insisted that the description of the property mentioned therein is wholly insufficient, and so vague and uncertain as to render the mortgage void. The property is described as “two brown mules, aged 8 and 12years.” In connection with this description the mortgage recited that the property was situate in the county of Russell and state of Kansas, and that the mortgagor should continue in the peaceable possession of the property until default was made, or the mortgagee should deem himself insecure; and the testimony showed that these were the only mules which the mortgagor had. A chattel mor)gage should describe the property with reasonable particularity, but there is not that strictness and accuracy required that the plaintiffs in error insist upon. It *439has been often decided that a description in a chattel mortgage which will enable third persons, aided by inquiries which the mortgage itself suggests, to identify the property, is sufficient. Here the defendants are bound to know that the property was situate in Russell county, was in the possession of Reinhardt Borgert, and upon inquiry they would have ascertained that these were the only mules owned or possessed by Borgert. While the description g¡ven jg not ag fu]j an(j certain as is desirable, yet under the rule mentioned and the decisions made, we think the description is not so uncertain and imperfect as to invalidate the mortgage. (Adams v. Hill, 10 Kas. 627; Brown v. Holmes, 13 id. 482; Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id. 246 ; Mills v. Lumber Co., 26 id. 574; Muse v. Lehman, 30 id. 514; Griffiths v. Wheeler, 31 id. 17.)

2. Substantial description. It is next contended that under the evidence the description given in the mortgage did not fit the mules in controversy in respect to either color or age. There was some dispute in the testimony as to whether the mules were brown or bay in color. Some witnesses testified that both were brown, others that both were bay, and still others that one of them was brown and the other lighter in color, and might be called bay. Some of the witnesses who testified did not distinguish between brown and bay, but treated the latter as a shade of brown. It is well known that the color of animals is affected by age, and changes with exposure; and in view of this fact, and of the testimony expressly stating that the mules were brown, it cannot be held that the court erred in finding that the mules corresponded in color with the description in the mortgage. In respect to age the testimony was conflicting and unsatisfactory. None of the witnesses knew the time of birth, or could state the exact age of either mule; and it is said to be difficult to judge the age of a mule after he passes the eighth year. It cannot be said from the testimony that the age given was incorrect; and it is expressly admitted that the mules in controversy are those which were described in the mortgage. As these were the *440only mules owned or kept by Borgert, no one could be misled by the description. The mules comport substantially with the description, and it being clear that the defendants were not and in fact could not be deceived on account of the description, they must be held to have known that it was intended for the animals in controversy. (King v. Aultman, 24 Kas. 246.)

Error is also assigned upon the exclusion of testimony relating to the disposition made of the horses which were traded for the mules. It was claimed that Bender had confirmed the trade by accepting a mortgage upon the horses which were traded for the mules. Upon cross-examination of Bender, the court disallowed a question in regard to what disposition had been made of the horses which had been taken in exchange for the mules. The objection was properly sustained to this inquiry, upon the ground that it was improper cross-examination. Subsequently, however, Bender was made a witness of the opposing parties, and stated that he took a mortgage upon the horses as a temporary security until the mules could be recovered; that it was not taken in place of the mules nor in lieu of the other mortgage, but the understanding was that it was additional security until the mules could be recovered, when he was to surrender it; and upon the recovery of the mules he did surrender the lien upon the horses. He stated that one of those horses died before the suit was brought, and an objection was sustained as to what had become of the other. In view of the fact that Bender was a party to the suit, a fuller examination with reference to the disposition of the horse might with propriety have been allowed; but it is quite clear from the testimony that there was no intention on his part to ratify the contract of exchange or to release his lien upon the mules, and therefore the exclusion of the testimony is not material error.

*4413. Replevin; demand, not necessary. *440Again, it is said that the testimony is insufficient to show that Laudner and Schmidt detained the possession of the property in controversy, and that no judgment for costs should have run against them. We think there was no mis*441take in rendering judgment against these defendants. They had possession of the mules for a time, and Schmidt admits that when the parties came in search of them he told an untruth in regard to their location, in order to hinder Bender from finding them. Dawson came in the night-time and took them away from the defendants Laudner and Schmidt, and thus they were shifted from one to another of the defendants for the apparent purpose of preventing the plaintiff below from gaining possession of the property. Under these circumstances the actual manual possession of the property in these defendants was not necessary, x L J J ' nor was a demaud of them required for the maintenance of the action. They never conceded the right of possession in Bender, but based their defense on a ground wholly inconsistent with the right or ownership of Bender, and at no time did they indicate a willingness to yield the possession if a demand had been made. They are therefore in no position to insist that a demand was not made, nor that they did not unlawfully detain the property. (Raper v. Harrison, 37 Kas. 243; Collier v. Beckley, 33 Ohio St. 523.)

We find no error which would justify a reversal of the judgment; it will therefore be affirmed.

All the Justices concurring.