Simonson v. McHenry

41 Colo. 508 | Colo. | 1907

Mr. Justice Goddard

delivered the opinion of the court:

'The principal and controlling question is whether the goods and chattels which the defendant purchased from Marie Merrill are the same goods and chattels which are covered hy the chattel mortgage. The contention of the defendant is that the property levied upon was not covered hy the chattel mortgage, the same having been purchased subsequent to the giving of the original mortgage, and that the last mortgage" covered only such chattels as were .included within the first, and whether they were so intended to he or not, that the description in the mortgage was insufficient to enable a third person to identify the property as being that described in the mortgage.

It' is difficult to identify any of the property levied upon as the property described in the mortgage. As above stated, the levy did not include a large part, if any, of the property specifically described in the mortgage, and only such property as might be the property described therein as ‘ ‘ all bedding, dishes, cooking" utensils, together with all things, both useful and ornamental.”

We think this description is too general to give to a third party notice of the property intended to be included within it. Aside from this, the testimony as to whether the property levied upon was the property intended to be included in the mortgage was conflicting, and the court below, having found that issue in favor of the appellee, we are unable, upon a careful consideration of all the evidence introduced, to say that its conclusion is wrong. We have carefully considered the errors based upon the admission and rejection of testimony, and we think the court committed no error in the rulings complained of. Our conclusion is that, in the light of all the facts disclosed by the record, the finding of the court below must be sustained, and its judgment affirmed.

Affirmed.

Chief Justice Steele and Mr. Justice Bailey concur.