Barry v. Bennett

Dewey, J.

The defendant insists that the plaintiff cannot maintain this action, first, because the wire, which is alleged to have been appropriated by the defendant to his own use, was, at the time of the making of the mortgage to the plaintiff, subject to a previous mortgage, made on the 24th of July 1834, to William Rider. The existence of this ground of defence is de nied by the plaintiff; and upon recurring to the mortgage to Rider, it is found to contain no recital of the various articles proposed to be. transferred in mortgage, except bv a reference to a supposed schedule marked (A.) No such schedule was in fact annexed to this mortgage ; but it further appears, that on the 22d of August 1834 Rider assigned his mortgage to George Adams, and that a schedule (A.) was annexed to this assignment. By this schedule it appears, that no such wire was included in the mortgage to Rider. If, therefore, it is competent to recur to the original mortgage to Rider, and to the assignment subsequently made to Adams, for the description of the articles mortgaged to Rider, it will be made apparent that the wire, which is the subject of the present action, was not included in that mortgage. But the defendant insists that it is not open to the plaintiff to show these facts, because in the indenture by which the property was conveyed by the mortgage of William Bartlett to the plaintiff, it is recited to be “ subject to a mortgage bearing date July 24th 1834, and given to William Rider,” being the mortgage already referred to; and this, it is strongly urged, is an estoppel upon the plaintiff.

Several answers may be given to this objection. 1. It is no estoppel, reading the clause with reference to the state of things and the facts apparent on these papers. The schedule A., in the assignment of Rider’s mortgage, obviously includes many articles of personal property that were included in the mortgage to the plaintiff; and it may well satisfy the words', “ subject to a mortgage to Rider,” to hold that, as to all such articles, the mortgage to the plaintiff was subject to the mortgage to Rider. This gives full force and effect to the words used, and they may well be taken to be used for this purpose. 2. Rider’s mortgage is shown to have been discharged. The notes which it was given to secure have been paid. To this, however, it is objected, that the payment was made after the conveyance by mortgage had become absolute, and so the property included in the mortgage had vested in the mortgagee, without the right of redemption. But, if thus vested, it seems to us that it may reasonably be inferred that the right to hold the property absolutely was waived by the mortgagee. The receiving from the mortgagor payment of the entire amount of the debt secured by the mortgage, after the time for redemption had expired, would, in reference to personal property mortgaged, well authorize a jury to infer a waiver of the right to hold absolutely ; and the jury have so found in the present case. 3. But further; the defendant can with no propriety set up this estoppel, he not being a party to it, nor shown to have been in any way prejudiced by it. He has not acted upon it, or parted with any rights upon the supposition that the property in this wire was in Rider. He does not connect himself with it in any way. The only ground, upon which the defendant can urge this objection, is for the purpose of showing that the wire, the value of which the plaintiff seeks to recover in this action, was in truth the property of Rider or his assignee, and that the defendant is therefore responsible to Rider, and not to the plaintiff. Any competent evidence to show that Rider never had any claim upon the wire, or, if any, that it was discharged before the commencement of the present action, obviates that objection, and is all that can be required of the plaintiff on this point.

The second objection raised by the defendant is, that it was incompetent to prove, by parol evidence, facts and circumstances tending to show that the parties to the mortgage, in using the description “ ton of brass wire,” did not intend a precise ton by weight, but a quantity of brass wire about that weight, or exceeding it some five or six hundred pounds.

Where the recital is clearly definite and certain upon the face of it, it would be true that the description could not be controlled or varied by oral evidence; as if the recital had been “ one ton of brass wire to be taken and separated from the mass of brass wire now deposited in the store of A.” But the description, in the present case, is more general; viz. “ one ton of brass wire.” Evidence may therefore be introduced, to show that the mortgagor had such brass wire, and the manner of storing it, and the quantity, and a judgment be formed, from the whole circumstances, whether it was the intent of the parties to convey in mortgage the entire stock of brass wire, or the precise quantity of one ton, and that to be separated from the larger mass. If it appears that the whole amount of the article exceeded one ton only by a few hundred pounds; if it appears that the parties treated the entire parcel as the ton of mortgaged wire, pointed it out as such, made no arrangements for taking the weight, or setting apart a portion of it as the wire mortgaged ; these are circumstances which may be properly considered, where the language of the instrument is such as admits an explanation by parol. In the present case, resort must be had to parol evidence to identify the wire; the description being loose, giving no location, or specification, distinguishing it from any other brass wire. Had it appeared that the mortgagor owned a large quantity of such wire lying in one parcel, and very considerably exceeding the amount of one ton, the case would be different. The description of the article in the mortgage would clearly indicate that the mortgagor could not have intended to transfer several tons of brass wire, and no parol evidence would be admissible to explain or control it.

Upon the facts stated in the present case, we are satisfied that a proper construction has been given to the contract, and that the jury were well warranted in finding that it was the entire quantity of wire that was conveyed by the mortgage. Such finding obviates all objections arising from the fact that the wire had not been weighed, and severed from a greater mass of wire The jury have found that the parties intended to convey in mortgage, not a specific quantity of wire, to be ascertained by weight, but a specific parcel of wire then placed in a certain loft, whether the same was a little more or less than a ton. •

A question was made at the trial as to the competency of the evidence contained in the answer of William Bartlett to the 20th cross-interrogatory put to him. In looking at this interrogatory, it appears to be an inquiry of the witness as to the terms on which he contracted with the defendant for the money which was the consideration of the pledge under which the defendant claims title to the property in controversy; and the object apparently is, to show that it was an usurious contract. We do not perceive its relevancy, but great latitude is allowed in cross-examinationj with a view to the sifting of the witness as to his memory, and to test his disposition to tell the whole truth. This answer clearly did not bear upon any question upon wiiich the jury have found against the defendant. It was at most only irrelevant, and not so far objectionable as to require the verdict to be set aside on account of its admission.

As to the measure of damages, we think the true rule will be to compute the interest from the time of the sale by the defendant,

[After the above opinion was delivered, the plaintiff remitted the amount of interest on $473 from February 18th 1835 to the time of the sale by the defendant, and judgment was entered for the balance, with interest to the day of the rendition of judgment.]