65 Barb. 43 | N.Y. Sup. Ct. | 1873
The chattel mortgage in question in this case, I think, was clearly fraudulent as against creditors, upon the face of the mortgage and the undisputed facts of the case, within the principles asserted in the cases of Edgell v. Hart, (5 Seld. 213;) Gardner v. McEwen, (19 N. Y. 125;) Ford v. Williams, (24 id. 359,) and Russell v. Winne, (37 id. 593.) A fair interpretation of the mortgage itself, I think, implies or involves an agreement and understanding between the parties that Morrison should go on with the store, selling goods on his own account, and replenishing the same from time to time, precisely as he had theretofore done, and without respect to the mortgage, till the notes, or one of them, which the mortgage was given to secure should fall due. The mortgage' covered about $8,000 worth of goods. The plaintiffs’ debt was $1,400. The mortgage was to be a continuing lien and security upon “the stock or goods to be thereafter brought into the store:” This provision imports that new goods were expected to be brought into the stor.e, to replace those sold, so that the lien should be continued, and transferred from those sold to the new goods thereafter to be brought into the said store. The lien was thus a fluctuating one from old goods as sold to new goods substituted in them place. This was the clear purpose and intent of the parties, as fairly inferable from the terms of the mortgage itself.
The case is within the principles and facts asserted in
This was just such an arrangement as was held, in Edgell v Hart, to render the mortgage void. All the judges of the Court of Appeals concurred in this decision ; and I cannot see any substantial distinction between that case and this. The referee,- it is true, finds that there was no arrangement made in reference to Morrison selling the goods mortgaged, and the plaintiff had no actual knowledge that he had sold any. This finding is in conflict with the positive testimony of the attorney who drew the mortgage and was present at the time of its execution and delivery; but there is a conflict between his testimony and that of the plaintiffs’ agent who took the mortgage, on this point; and the referee’s finding, as between the two witnesses, if that was all the evidence in the case, on the subject, coiild not be disturbed. The referee probably intended nothing else by this finding, than to negative the fact o.f an express agreement, in words, that the mortgagor should continue to sell the goods. But the proper inference from
If necessary so to hold, I should think this judgment should therefore be reversed on the facts. The referee’s finding that it was not agreed that Morrison should go on and sell the goods as before the execution of the mortgage, I think, is in conflict with the decided weight of the evidence. The positive testimony of the witness Hadden, is, I think, strongly corroborated by the testimony and facts of the case. This witness testified that he read the mortgage in the presence of Morrison and Havell, the plaintiffs’ agent; that he read the continuing clause, and Morrison said, “that is all right, but I am to continue to sell right along;” and Havell said, “certainly.”
The plaintiffs’ agent simply denies that he said so; but in view of all the facts of the case, I think the positive affirmative testimony of Hadden should rather be credited. He had no interest in the matter, was an attorney simply called on to draw the mortgage, and was
Mullin, Talcott and JE. T). Smith, Justices.]
The judgment should be reversed, and a new trial granted; costs to abide the event.
Talcott, J., concurred.
Mullin, P. J., dissented.
Judgment reversed, and new trial granted.