Fanning v. Vrooman ( 1887 )

Parker, J.

The appellant claims that the mortgage to foreclose, which this action was brought, is void, because of an alteration made therein changing the date of payment of the first installment of principal and also the date from which interest was to run.

The issues framed by the parties and evidence offered upon the trial made it the duty of the referee to determine-as a matter of fact this question. Is the mortgage sought to be foreclosed the same instrument which was executed and delivered to the plaintiff by defendant Vrooman and wife on the 27th day of December, 1882?

That question the referee found affirmatively, and further found upon the subject of the alleged alteration in effect that the changes were made by Sprong the draughtsman, who stood in the relation of stranger to the parties, at about the timé of the execution of the bond and mortgage and prior to the delivery thereof to the plaintiff. The evidence fully warrants such determination on the part of the learned referee.

First. The bond, which concededly had not been altered, agrees with the mortgage as it now is.

Second. The certificate of the draughtsman, Sprong, upon which defendant bases his claim of an alteration, shows that it was made to correct a mistake.

Third. The plaintiff testifies that no change has been made since its delivery to him.

Fourth. No one contradicts him; neither the draughtsman nor the mortgagor, were called upon to testify in relation thereto.

Fifth. The mortgagor by. his payment of interest thereon ■demonstrated that he understood the agreement to be as expressed therein.

Sixth. It is unreasonable to suppose that plaintiff agreed to forego the first years interest, which would have been the effect of the agreement but for the correction.

This question of fact having been determined in favor of plaintiff, and default having been proved, it followed that he was entitled to the judgment granted.

The appellant assigns as error on the trial, the refusal of the referee to permit the following questions to be answered: Q. “Did the defendant, Vrooman, make and execute to you a chattel mortgage sometime during the present year?” and Q. “Did the said Vrooman execute to you a paper purporting to be a chattel mortgage?” Had there ever been such a mortgage in existence as was pleaded in the answer, the questions undoubtedly would have been proper. As the referee, however, did not undertake to hold that the mortgage itself; was not proper evidence, and the defendant made no effort to produce it, or prove its contents, in fact made no other allusion to it during the trial-than to ask the questions quoted, it is not unreasonable to assume that if such a mortgage existed, it was not material to the issue. As the case stands had the questions been .answered, the result could not possibly have been affected and the error is not therefore of such a character as would justify a reversal.

Judgment affirmed, with costs.

Lakdon, P. J., and Pish, J., concur.