Simis v. Hodge

3 N.Y.S. 228 | N.Y. Sup. Ct. | 1888

Barnard, P. J.

The Homeopathic Manufacturing Company gave a chattel mortgage to the plaintiff, a bona fide creditor. The defendants, by virtue of an attachment, subsequently issued an execution thereon, and seized the goods mortgaged, and sold them to pay the judgment in the attachment action. The seizure under the attachment was subsequent to the filing of the mortgage in the proper clerk’s office. The mortgage contained a clause that the mortgagor was “to remain and continue in the quiet and peaceable possession of the said goods and chattels, and in the full and free enjoyment of the same, ” “until default be made in the payment of the said sum of money, ” being the mortgaged debt. The judge charged the jury that a sale of goods mortgaged without the agreement of the mortgagee did not render the mortgage void. The defendants, therefore, requested the court to charge that by leaving the mortgaged property in the possession of the mortgagors the mortgagee madé them his agents, and, if any goods were sold, it makes the mortgage void, ■and at least the goods sold should be credited on the mortgage debt. 2ieither •of these requests are well founded in law. The old controversy, whether a mortgage was absolutely or only primarily void by reason of the possession of the mortgaged property being left with the mortgagors, has long been settled. Hastings v. Parke, 22 Alb. Law J. 115. It is a question of fact for the jury. The language of the mortgage given above does not directly or indirectly permit a sale by the mortgagor, nor even inferentially permit. Frost v. Warren, 42 N. Y. 204. After default, the mortgage provides for a sale of “said goods, ” and “until default” that the mortgagors shall remain in the full possession and enjoyment of “the same.” No abatement of the mortgaged property is hinted at; no dimunition anticipated. The entire goods are to •continue until needed to perform a broken condition, if one is reached by nonpayment.

The exception as to the proof given by Mrs. Oson is not well founded. She was the wife of the president of the homeopathic company, the mortgagors. She was directed not to sell the goods after the mortgage, and she states that they were all unsold. There is another similar exception as to an■otber witness. A mortgagor certainly can prove that none of the goods mortgaged were sold, and that he gave his clerk and employes directions to that effect, followed by proof that they did not sell any of it after receiving instructions that it was mortgaged and must not be sold. A mortgage could not be proved in this way, but the mortgage is admitted. The clerk’s action in respect to it may be explained by this instruction. In such cases the direction is part of the res gestee, and not res inter alios aeta.

There is therefore no error which calls for the reversal of the judgment, and it should therefore be affirmed, with costs.