*1 n Stoddard Ploeger. [42 v. Points Decided. portation. concerned, is to have ceased with the connection liquors they by when ceased held carrier transportation. storage. they After that held for It were surely storage will goods contended that transportation. They continuation be- were stored transportation cause the had ceased.” We, therefore, shipment that conclude where a of auto- commerce, mobiles in interstate which remains in title to consignor, consignee has its destination arrived at re- accept fuses to delivery of the common carrier same, and the pursuance legal consignor’s its duty protect erty places warehouses because such them refusal consignee, any lack in such and the event further order consignor, or direction the character of said .auto- shipment commerce mobiles interstate ceases. just Having announced, arrived the conclusion thus at it' follows, necessarily as hereinbefore that the stated, automo- subject question levy biles assessment and the question. tax in lower court affirmed with costs respondent. Lee, JJ., William A. C. Wm. E. Lee and J., and Taylor, Judge, Dist. concur. Yarian,
(June 30, 1926.) BYRUM, E. Respondents, T. STODDARD and C. L. BURLEY PLOEGER, NA Appellant, ALBERT BANK, Defendant. TIONAL 791.] Property — Mortgages Description — After-acquired Chattel Property Delivery Delivery —Claim and — Bond —Evidence PIroperty Special Damages. Value —General S., at 1.- Under see. sale of acquired by mortgagor mortgage, date mortgage, mortgaged acquired to another unrecorded no Points Decided. making unrecorded mort- interest therein within section subsequent purchasers. gages void as to mortgage not under chattel at sale 2. Purchaser *2 may not claim after-acquired property cover intended to mortgagor. erty subsequently acquired by description in rule as to definiteness 3. Strictness of mortgagee and at- only between mortgage applied encumbrancers, purchasers in taching creditors, subsequent and mortgagee good earlier faith, value, not favor of for and property, purchaser his sale. of other at specific personal property. mortgage” on “Chattel is a lien 4. delivery filing in claim and for Where, at time suit 5. delivery property, property was on bond delivered not to sub- redelivery filed, it was and no bond was required was value of not mit evidence as to to find value. spent time Expenses and value of 6. for automobile hire property sought locating obtaining possession and property special are recovered as for detention alleged. damages, unless not recoverable damages” immediate, direct, proximate 7. “General are general complained of, provable act and are under result of allegation. damages” damages which, although natural, “Special 8. are necessary consequence act, are are not not recoverable specially pleaded. unless APPEAL from the District of the Eleventh Judi- Court County. District, Bailey Lee, for Hon. Cassia T. cial Judge.
Publisher’s Note. O. L. 5 E.
2. See 404.
3. See 5 E. C. L. 429. 5 E..C. D. 439.
4. See 8 E.
7. See O. L. 429. J., Mortgages, 1, p. 3; 399, 78, p. Chattel 11 O. See sec. sec. n. p. 459, p. 501, 26; 457, 29; New; 169, 193, p. 38 n. n. n. sec. see. 20; 520, p. 713, 17 New. n. sec. n. ' J., Damages, 19, p. 713, 57; p. 93; 17 C. n. sec. n. see. p. n. 71. sec. Cyc., Eeplevin, p. 1475, 42; p. 1534, n. n. New. 42 Idaho —44
Argument ^Respondents. for Action, delivery. Judgment plaintiffs. in claim for with directions. Modified
S. T. Morris, Appellant. Lowe and T. M. void, plaintiffs held was party the defendants. The defendant was but was a at the fore- creditor, closure of a therefore in the same sale stood position (16 Weatherlys. L., as the creditor of R. p. 138, 101, 102.) secs. description within the mort- included
gage person aided not sufficient enable a third inquiries identify suggests, which the itself instrument property purported mortgage, described in (Sigel Campion Live- same therefore void. stock Pae. Holly, Commission Co. v. Colo. Langdon, McConnell v. 3 Ida. 28 Pae. Pierce v. *3 Langdon, 401; Fitzgerald, 3 141, Ida. 28 Pac. Walker v. 319, 259.) 157 Minn. 196 197 269, N. W. N. W. Special damages actually are such as result from the com- wrong mission of a but are not such a as result implied by law, will be specially pleaded. and must be (Duck 461, 21 Ida. 122 Co., Ltd., Lee v. Boise Dev. Palmberg, 693, 28 851; 981; v. Ida. 155 Pac. Tucker Kirk Madareitc, 403, 225; 32 184 Pac. Lessman v. Ida. v. An- schustigui, 127, 460.) 37 Ida. 215 Pae. Hosier, Respondents.
H. Y. Creason Harmon E. only A at foreclosure obtains such title sale mortgagor property under held when (Dixon' is foreclosure sale. 32 property Ladd, sold at v. 1916A, 253, 259, 142 163, S., D. N. W. S. Cas. Ann. 6383.) see. party
A or third in a nonre creditor order defeat mortgagee’s right, a must be creditor who has ob corded property by judi a lien on the attachment other tained (Folsom 69 Implement Co., Ploiv <& process. cial v. Peru N, 111 95 635; Am. W. Dexter v. Citi 537, St. 316, Neb. v. Baum, Opinion of Commissioner. the Court — 530; (Unof.) 94 N. W. Reiss Nat. Neb. zens’ y. 988; N. (Unof.) 756, Gray 92 W. v. Neb. Argubright, Youngberg Walsh, 72 T):oty, 1008; 94 Pac. v. Kan. 972.)
Kan.
83 Pac.
plaintiff
an
Where the verdict of the
is for
gave
delivery,
plaintiff
bond and
action of claim and
and the defendant
obtained
is
put
bond, there
no need of
up
redelivery
evi-
did
plaintiff to show
being
dence
the value of
submitted
(Carrwthers
v.
support
verdict.
Hens-
Meyer,
90 Cal.
27 Pac.
Cal.
ley,
Erreca
A lien upon (First & erty. Bank McIntosh Peters Livestock Nat. Co., Ladd, 72 Kan. 84 Pac. Commission Dixon v. 1916A, 253, 259.) -142 32 D. Cas. N. W. S. Ann. BAUM, an action in claim Commissioner. This is T. It. delivery plaintiffs instituted Stoddard and respondents herein, from Byrum, C. E. recover of and Bank defendants, the and Albert Ploe- herein, ger, being appellant posses- the last named alleged livestock, $300, of certain to be of value sion damages together $150 additional sum of for the with the wrongful originally detention thereof. action filed judgment resulting probate court, for Stoddard thereafter Byrum, Ploeger; the defendant de- upon Ploeger appealed District Court and fendant favor de novo, had a trial Byrum, for the return Stoddard and had, $300 return the sum of in case its could not $50, for in the sum value thereof and *4 wrongful the from which detention of appeal taken. this wife, Decem- Weatherly and on the 27th of
One R. W. Burley the National ber, 1919, executed and delivered to cattle, mortgage upon certain Bank their certain Opinion Baum, Commissioner. the Court — last-men- of which action. The none are involved in this $2,600 mortgage payment given tioned was secure to acknowledged February mortgage note. This was proper duly record in the and was thereafter filed for day county. April, 5th Thereafter and on the twenty respondents Weatherly cows the to herein sold said the $1,200, and evidence for to three calves the sum respond- purchase price Weatherly and wife executed to $1,200, and sum of promissory ents herein their note delivered made, to payment thereof executed secure mortgage covering property so sold. a chattel Burley Bank became National The note favor respondents herein due the note November to on October 1920. became due recorded mortgage herein was not until October 1920. 1920, Weath- day prior October,
Some time the 22d to last- erly departed unknown, and on the parts and wife Burley prior the due day, to mentioned by proceedings affi- note, date its commenced foreclosure including sale, those cattle davit, notice and certain who appellant Ploeger, Albert controversy sold herein, president during times mentioned all Burley National Bank. purchase purchased by Weath- price cattle so respond- erly respondent being unpaid, due and from mortgagees executed ents herein bring themselves, this for the Weatherly action and wife property. specifies eighteen error, Although appellant assignments of assignments take such of the are deemed neces- I shall case, sary in the of the material a determination issues by Weatherly executed namely; that the wife indefinite, by reason respondents was void un- sought description insufficient certain and mortgage mortgaged; not filed for that the record to the foreclosure until a time *5 Ploeger. Stoddard Baum, Commissioner. Opinion of the Court — the Bank; was introduced to National that evidence no sought from which the of to recovered the chattels value sought fix the the determine value cattle could competent no recovered, that there evidence to be was by by plaintiffs any rea- submitted suffered the cattle, by appellant. son the of the detention of the [1] An examination of the record discloses conclusively by in controversy part that the of the cattle sold cattle April 5, 1920, appellant on Weatherly to the assignments is the fact, in admits that such in certain his purchaser in cattle con fact and he the of the that became troversy in mortgage favor at the foreclosure sale under'the pos right Burley National and that his acquired purchaser. Appellant relies session was as such upon in provides which provisions S.,C. sec. part, as follows: mortgage
“A personal property is void mortgagor subsequent purchasers creditors property good value, encumbrancers of the faith unless, mortgage, copy thereof, and the .... or a true county county filed for record with the recorder kept.” property where such is located and Ploeger, Weatherly. individual, as an a creditor purchaser He was at sheriff’s sale under foreclosure prior Weatherly executed at a time Weatherly’s hence, purchase controversy, cattle mortgage. cattle could not been covered have such Appellant’s right belies his otherwise. admission assert purchaser only acquired As he that interest such which mortgagor mortgaged had in at the time of mortgage. S., sec. 6383. execution of the And mortgagor no Weatherly as had interest instant case controversy he cattle in at the time executed mort- Burley Bank. The gage mortgagee, National bank Weatherly acquired by that caused sold mortgage. to the its date of execution mortgagor having no interest, took no interest.
Opinion Baum, Commissioner. Court — [2] It is clear that the
Bank did not and after-acquired was not intended to cover Ida, (Dover property. Chase, Dumber Co. v. Walker, Kettenbach v. Ida. 186 Pac. appellant may therefore any property not claim under it *6 'subsequently acquired by mortgagor. (New Lincoln Shears, Hotel v. 57 78 478, 524, Co. 73 Neb. Am. St. 25, 43 588; L. W. R. A. Valley Battle Creek Bank v. Bank, First National 62 Neb. A. 88 N. W. 56 L. R. 124.)
[3] The
executed
by Weatherly
and wife to the
respondents,
description
prop
a
contained
sufficient
of the
erty
mortgagors
(Hare
as
mortgagee.
between the
and the
Young, 26
v.
Ida.
v. Ronaghan,
Pac.
Marchand
9 Ida.
731.)
ap
Pac.
The strictness of the rules
plied
mortgages
description
to chattel
as to
definiteness
is only applied
mortgagee
attaching
between the
and
creditors,
purchasers
encumbrancers and
in
good
(Hare
faith
for value.
Young, supra;
v.
v.
Rea
Wilson,
[4] Neither appellant nor Burley National Bank was attaching an creditor, subsequent encumbrancer or good in meaning faith and for value within the of the statute. A upon specific personal prop is a lien (First erty. al., National Bank v. McIntosh et 72 Kan. 535.) Burley Pac. The Bank’s did National lien not only cover the in but controversy mortgaged so to it.
[5] The record shows that the respondents at the time filing put up delivery suit a bond and that the cattle were respondents redelivery delivered to and no bond was fur appellant, nished or the defendant respondents possession and that had at the time trial; therefore it not to submit evi jury dence as to their value. The not such case is required to find property. the Value In the instant respondents case special interest had Baum, Commissioner.
Opinion the Conrt — Hensley, 90 mortgagees. (Cruthers Cal. namely, 826.) 308, Meyer, 142 Cal. Erreca v. 27 Pac. complaint follows: as Paragraph IV of the 29th about the did on or herein “That the defendants County Cassia, State day October, in the wrong- consent, plaintiffs’ against contrary to and possession of above fully unlawfully into the come said and has retained the personal property described contrary to erty wishes, and- possession in their plaintiffs.” the consent these damages respondents $50, awarded [6-8] allegations intro support damage, as to ac hire, men expense automobile
duced evidences seeking respondent the return companying Stoddard in thirty days’ $15, an item of of the cattle the sum of ob locating and spent by respondents in time one cattle, worth taining time was and that his sought per day. damages obtained $5 to be special damages general. Special cannot *7 alleged. (Lipscomb v. Tan expressly be unless recovered 733.) damages special What ner, 31 E. is the S. C. S. alleged? being specially proved without which cannot damages general are called contra- seems that what It distinguished special damages, evi from are admitted general allegation, by the under indeed are inferred dence they di itself, immediate, reason are the that law for the complained proximate Dam result the act of. rect and although -natural, are not ages which act, being consequence of the outside of costs and consequential by law, their allowed disbursements special damages not admissible in evi are nature are elementary specially ploaded. It that dam unless is dence ages ordinary be the result must immediate in the sense complained supreme court of the United of. act Vandercook, Sup. 170 U. S. in Vance Ct. States similar rule. 42 L. laid down a somewhat ed. 1136.) (Henderson Coleman, Wyo. 183, Pac. Village Goodman v. ok McCammon. [42 Points Decided. assignments go points made stated. other above days If thirty receipt within remittitur below, the clerk of court file a waiver judgment as to amount will $50 affirmed, otherwise will and a be reversed granted. new filed, trial If is waiver costs awarded appellant. respondents, costs otherwise Taylor, Lee, JJ., Wm. B. Givens and concur. opinion foregoing
PER hereby adopted CURIAM. —The opinion as the of the court.
(July 1926.) Wife, H. GOODMAN, H. and ROSIE GOODMAN His Respondents, McCAMMON, v. VILLAGE OF a Mu nicipal Corporation, Appellant.
Municipal Corporations Liability for- — Defective Streets —Per- Jury Injury sonal for —Instructions. Evidence—Question — villages negligent discharge are liable 1. Cities and for reasonably duty keeping alleys streets and safe condition.. Municipality injuries is not liable for 2. caused defec- in absence
tive streets of actual or constructive notice of defect. ipsa loquitur application 3. Doctrine res has no to action injury for from defective sidewalk. recovery injuries 4. Evidence held insufficient sustain depression stumbling slight to woman over in sidewalk. liability Question of municipality 5. for defective side- by particular walk streets must be determined facts each *8 case. 6. Evidence sidewalk, as to defective condition causing injuries stumbling oyer woman depression, presents question jury.