95 Vt. 431 | Vt. | 1921
The action is tort for the alleged conversion of articles of personal property mortgaged by the defendant to the plaintiff. The trial was by jury with verdict and judgment for the plaintiff. The case is here on defendant’s exceptions.
The defendant is a brother-in-law of the plaintiff, having, at the time the mortgage was given, lately married the plaintiff’s sister. He then lived at Richmond, Vermont, but owned a farm in the town of Essex, where much of the mortgaged property was situated, and to which he removed soon after the mortgage was executed. The mortgage bears date October 16, 1914, and was given to secure the payment of a note of $975 and interest payable on or before one year from that date. No part of the note has been paid. The property mortgaged is described as follows: “One suckling colt, one 7% horse power motor, one grain separator, one milk separator, six brood sows, four pigs, one feed grinder, one P. K. cutter and blower, one two-row corn planter, 600 bu. oats, one stack straw, one silo ensilage, all household furniture and furnishings. ’ ’ The defendant retained the possession of the property, and no action looking toward a foreclosure of the mortgage was taken until sometime in the fall of 1917. The
Certain exceptions are briefed together for convenience. The first group raises in several ways the question of the sufficiency of the description of the property. Exceptions were taken: (a) To the admission of any evidence respecting a suckling colt, on the ground that the description was insufficient; (b) to the exclusion of a question asked the defendant whether he had other swine; (e) to the refusal of a directed verdict on the ground that the description was inadequate for a valid mortgage; (d) to the charge that the mortgage was valid and binding on the parties thereto and covered the property therein described; (e) to the refusal to set aside the verdict on the ground that the mortgage was void and the description insufficient to enable the officer to find the property. The defendant recognizes, as a general proposition, that a different rule prevails where the suit is between the parties to a mortgage than where the rights of third persons are involved; but he disregards the distinction when it comes to citing cases in support of his claims.
It was said in National Bank v. Fitts that as between the parties to a chattel mortgage the description is to be interpreted in the light of the facts known to, and in the minds of, the parties at the time; that a description which is sufficient between the parties may be utterly insufficient as against third persons; that, as between the parties, a specific and particular description is not necessary; and that, as between the parties, the mortgage need not contain a description of the several articles by which to identify them from other like articles of the mortgagor. The rule generally recognized is that, as between the mortgagor and mortgagee of personal property, as well as between the mortgagee and a person who has succeeded to the interest of the mortgagor with actual notice of the mortgage, parol testimony is admissible in aid of the description to identify the property intended to be given as security. Reinstein v. Roberts, 34 Oregon 87, 55 Pac. 90, 75 A. S. R. 564; Stewart v. Jacques, 77 Ga. 365, 3 S. E. 283, 4 A. S. R. 86; 5 R. C. L 429; Jones on Chattel Mortgages, § 64. Mr. Freeman says in a note to Barrett v. Fisch, 14 A. S. R. 239, that a description which is amply sufficient between the parties may be utterly insufficient as against third persons; for, as between the parties, a specific and particular description is not necessary, and the mortgaged articles may be shown by parol evidence. The reference to “third persons” is evidently intended to mean persons without actual notice of the mortgage. An examination of the eases shows the general rule to be that, as between the parties, any description is good; if'the parties at the time knew and understood what the mortgage covered. Cobbey on Chat. Mtgs., §§186, 188; Rudisell v. Jennings, 38 Ind. App.
It seems quite clear that in the circumstances the evidence made the question whether a refusal to deliver the property was intended a question of fact. Defendant told the officer that the property was there, though it was not visible. He must have understood that the officer- demanded and was entitled to immediate possession of the property and his inability to identify it without aid other than the description in the mortgage. If not under a legal obligation to comply with the officer’s demand that he show it to him, which we do not decide, the circumstances were Such as would justify an inference that a refusal to deliver was intended. That the officer so understood it is at once apparent. The charge on this subject was as favorable as the defendant was entitled to, and the exceptions in this group are without merit.
Certain exceptions were taken in the course of the opening argument for the plaintiff relating to the probability of the defendant’s having told the truth about the disposal of the mortgaged swine. We have examined the transcript and fail to find anything in the argument-requiring a reversal.
The court gave as the measure of damages the value of the property converted at the time and place of conversion and applied the rule to the several classes of property referred to in the evidence. The charge continued: “You should not guess or speculate as to the amount of the damages, but should decide this case upon the evidence and upon the evidence alone in respect to damages. If there is any article or articles the plaintiff has failed to introduce evidence which will enable you to determine its value at the time of conversion, you should allow nothing for them. The burden is upon the plaintiff not only to show conversion, but to show what the damage to her has been from the conversion.” The defendant excepted “to the charge as given, in effect, if the plaintiff has failed to introduce evidence * * * relating to damages, that they must not speculate. We claim that this is error, because that is a question for the court, and that the court should have charged the' jury that there is no evidence at all tending to show what the value was at the time' of conversion. ”
Judgment affirmed.