Thе action was tried at special term without a jury. The appellant insists that the defendants seasonably demanded a jury trial, and refused to waive it. This presents a question of fact respecting which the case settled by the learned trial judge must be deemed conclusive. The case was upon the calendar of the Franklin circuit in March, 1888, and the plaintiff pressed it for trial. The defendants objected, and finally consented that, if it
With respect to the merits, the defendants were liable upon their contract of indorsemеnt, and the plaintiff could sue them upon that contract without first exhausting its remedy upon the carriages which the maker had transferred to it as sеcurity. Bank v. Wood,
The trial court refused to find that the 40 carriages covered by the mortgage to Adаms and Martin were the same carriages previously mortgaged to the plaintiff, but the finding made is to the effect that at least 20 of them were. Thе court refused to find that the carriages taken by Adams and Martin were taken from the possession of the plaintiff, or were in its possession when Adams and Martin took them. The court did find that the defendants, during the week of Folsom’s death, “ were informed about the said chattel mortgages and as to the possession of the said carriages; that they made no complaint as to what had been done in respect to them, but aсquiesced in the same.” This latter refusal to find, and the finding itself, cover questions which were sharply contested upon the trial, and are undoubtedly suрported by the evidence. The appellant Shields afterwards made partial payments upon one of the notes, and promised to pay all of them.
We think the acquiescence of the defendant is fatal to the portion of the defense resting upon the ground thаt the plaintiff relinquished its hold upon a portion of the carriages. Although it is not disputed on this argument that the plaintiff’s mortgages were prior in lien to those of Adams and Martin, it is plain, from the attention given to the question upon the trial, that it was not certain which lien was prior at the time the carriages were taken. The plaintiff did not withstand Adams’ and Martin’s pretensions, and Shields, upon being advised of the fact, did not insist that it should. If Shields had objeсted to plaintiff’s action plaintiff might have retraced its steps, or at least have attempted to do so. Mrs. Hotchkin, the manufacturer of the carriages, soon after Folsom’s death claimed to own them, and sued the plaintiff and Adams and Martin to recover possession оf such part of them as each party had taken. These actions are at issue and undetermined. Unless Folsom gave to plaintiff a title to the carriages defensible against Mrs. Hotchkin, he gave to it no security. The defendants should have paid the notes at their maturity, and taken thе securities. If they can, by their default in their obligation, and notwithstanding their acquiescence when told of the taking by Adams and Martin of 40 of the carriages, compel the plaintiff and Adams and Martin to try titles with Mrs. Hotchkin, and themselves escape costs or
The defense in this action is an equitable one, and we think, under the circumstances, the defendants have no equity to recoup against the plaintiff for the carriages taken by Adams and Martin. They have shown no actual loss to themselves. It does not yet appear that they would be better off than they now are if plaintiff had taken all the carriages.
It remains to consider whether the defendants are entitled to be allowed the value of the 39 carriages taken possession of by the plaintiff. The defendants’ position is that, since the plaintiff tоok possession of the carriages under Folsom’s mortgages, given to secure these notes, the debt which they were given to secure wаs thereby presumed to be paid, or paid to the extent of the proved value of the carriages; that the only way the plaintiff could relieve itself from that presumption was to sell the carriages at public auction, and thus ascertain the amount actually paid, and the amount remaining unpaid; and that, since the plaintiff has not sold the carriages, the presumption of payment remains in full force, and thus dеfeats the right of recovery either in full or protanto. The following cases, among others, are cited in support of this position: Pulver v. Richardson, 3 Thomp. & C. 436; Case v. Boughton,
The defendants, by paying the note, can be subrogated to plaintiff’s rights against the carriages, and as between the defendants and the plaintiff they clearly ought to incur the risk of the failure of Folsom’s title. The judgment should be affirmed, with costs. All concur.