Stephens v. Pence, 56 Iowa 257

Stephens v. Pence

56 Iowa 257 | Iowa | 1881

Servers J.

i. practice: evidence. I. Conceding the evidence is all before uS, which, however, is denied in an amended abstract, the errors briefly considered. The first is that the mortgage was not introduced in evidence, and, therefore, it is insisted the plaintiff failed to- show he was entitled to the possession of the property in controversy. The abstract states: “Plaintiff’s counsel offers-in evidence the mortgage attached to plaintiff’s petition.” To this no objection was made. It is evident the mortgage was regarded by the court below as having been introduced as evidence, and *258rightly so, because no objection was made when it was offered. The point now insisted on is without merit, and- cannot be urged for the first time in this court.

2. mortgage : on chattels: description. II. It is assigned as error that the pi'operty in controversy was not included in or covered by the mortgage. The following is the description of the property contained ° r \ m the mortgage. “Our entire stock of goods, wares and merchandise, consisting of groceries, queensware, confectioneries, feed, provisions and all articles of goods, wares and merchandise now in stock, and that may hereafter be added to said stock, to stock up.and replenish the same, in the. store-room now occupied by us as a grocery store, being No. 21, on lot 8, block 13, Marion, Iowa.”

It is said neither kerosene or salt are groceries, queens-ware, confectioneries, feed, or provisions. Conceding this, kerosene and salt, clearly, we think, are included in the language “All other articles of goods, wares and merchandise now in stock, and that may hereafter be added to stock up and replenish the same,” for, certainly, kerosene and salt are goods and merchandise.

The salt was in a shed on the premises used in connection with the store room, for the purpose of storing salt and other articles kept for sale, and the kerosene, when levied on, was on the pavement in front'of the store, but there was evidence tending to show it had been roiled out of the store for some purpose which does not appear, in the morning of the day it was levied on by the defendant. The court, we think, under the evidence was justified in finding such removal was temporary, and that while it was on the pavement in front of the store room, and the salt in the shed, they were covered by the mortgage.

III. It is lastly insisted that after acquired property cannot be mortgaged.- It has been held otherwise, and the rule on this subject in this State must be regarded as settled. Scharfenbury v. Bishop, 35 Iowa, 60.

Aeeirmed.