Miller v. . Lockwood

The plaintiff claimed title to the goods in question, by virtue of a chattel mortgage given by one Henry Ramsdell. The defendant was the sheriff of Erie county, and claims the title to the same property, by virtue of five several judgments in the Supreme Court against the said Ramsdell, and executions issued thereon to him as sheriff; and by virtue of which he levied on the same goods, being at the time in the possession of said Ramsdell. The goods in question were merchandise, consisting of boots, shoes, trunks, carpet bags and the like. Ramsdell was, and for years had been, a dealer in those articles, and carried on the business of selling at wholesale and retail for cash and for credit, and had applied the proceeds of such sales to his own use, with plaintiff's knowledge and consent. Plaintiff had for several years held mortgages on Ramsdell's stock of merchandise, changing them from time to time. The property was levied upon the 16th October, 1857, and on the trial was proved to be worth, with interest, $9,005.42. The plaintiff's last mortgage, and under which he now claims, was dated 29th September, 1857, seventeen days prior to the levy. The consideration was stated to be $25,000. It described the property in no other wise than as all the stock of boots, shoes, rubbers, trunks, carpet bags, goods, chattels, fixtures and personal property of every nature and description, now being and contained in store No. 166 Main street, Buffalo, as now occupied by the party of the first part. The mortgage stated that "this grant was intended as a security for the payment of any debt, demand or liability now incurred or held, or which may hereafter be incurred or held by the said Miller on account of, or against the said Ramsdell," and also a security against any liability of said Miller by reason of, or on account of any indorsement or undertaking which has been or may hereafter be made or incurred by said Miller for said Ramsdell, and is to be a continuing security for the above, and any and all expenses, costs, c., to the amount of $25,000."

And it further provided, that upon default being made by said Ramsdell to pay any debt or obligation held by said Miller, or on which he might be liable when presented for payment or at maturity, said Miller might take possession of the said property and sell the same at public auction after giving five days' notice thereof in any daily paper in the city of Buffalo, or might sell the same at private sale, at such time and on such terms and in such manner as said Miller might deem most advantageous to the parties. There was no time fixed by the terms of the mortgage for the payment of the sum named in it, other than is expressed above, nor was the character of the indebtedness otherwise given than naming the consideration to be $25,000. When the mortgage was given, the amount due to the plaintiff by Ramsdell, as proved by plaintiff on the trial, was between $5,000 and $6,000. The plaintiff was liable beyond this as indorser for him to the amount of $8,000 or $9,000; the aggregate of debt and contingent liability was $13,700.

This chattel mortgage under which the plaintiff claims title to the property in question had no schedule attached, nor was there any other enumeration of the items of property claimed to be covered by it. There was only in the body of the mortgage a general description of the character or nature of the property in which the mortgagor was dealing. This character of property was the necessary consequence of his business as a wholesale or retail dealer, and would necessarily be constantly changing. The items of goods on hand on any given day, to wit, on a day on which a mortgage was given, would not, of course, if business of buying and selling continued, be the same on any other or subsequent day. Though the quantity of goods in store might be increased by purchases, the articles mortgaged must of course be constantly diminishing by sales, so that, at the end of two or three weeks, there would be no absolute certainty that any one single item of the mortgaged property remained; and yet it will be seen that such an indefinite and general description as this mortgage contains, would cover just as well an entirely different and even a larger stock of goods of the same character, as it did the goods on hand at its date. If such a mortgage is not void for uncertainty of description of the property, it at least throws the burden of proof upon the party claiming under it, to show that the articles of property taken by a judgment creditor are the same property that is covered by his mortgage. This was not done by the plaintiff; he produced no proof that the property levied upon was the property mortgaged. Besides, interpreting this mortgage by its own terms, which stated "that it was to be a continuing security" for $25,000, when there was only a contingent liability of the plaintiff for $13,700, no day of payment of the sum mentioned being named, being given to secure the plaintiff, not only for existing demands and liabilities, but such as might thereafter be incurred, and being given also as security for indorsements for Ramsdell which plaintiff might thereafter make, it must be held to have been intended by the parties to it that Ramsdell should continue to purchase and sell goods as a merchant, as he had done for years previous, under other and prior mortgages held by the plaintiff, either for cash or on credit; and that the mortgage should "be a continuing security" and lien, all the time on all goods of such description as was mentioned in the mortgage, as at any time might be and remain in the possession of the mortgagor. If this is to be held to be the legal intent of this written agreement, it was void as to creditors, and the judge erred in not nonsuiting the plaintiff on the trial.

The terms of the mortgage necessarily implies an intent, and the circumstantial proof confirms it, that the mortgagor was to continue to buy and sell goods according to the ordinary custom of wholesale and retail merchants; and to receive the proceeds to his own use, as he had done for years, with plaintiffs' knowledge and assent. And in this respect I cannot distinguish this case, in principle, from the case of Edgell v. Hart (9 N.Y., 213). As was said in that case, "The doubt, if there be one, is whether the law tolerates such an arrangement where the rights of creditors are concerned." "There was no traversable question respecting the intention of the parties." This was a question for the court in giving interpretation to the agreement. This is not the intent which the statute casts upon the jury to determine by reason of there being no change of possession of the goods; it was the legal intent, by fair interpretation, of the agreement. It was further said in the case cited: "The law adjudges that they intended what the writing expresses." I think we may add that this is so, whether it is expressed in terms, or by necessary implication, and the court may look at the surrounding circumstances in aid of such interpretation. It would be incompetent for either party to show, if they were possessed of the most persuasive evidence, the instrument to have a different operation from the one the law assigns to it." The argument of DENIO, J., in the case cited, pages 217, 218, is conclusive of this case. It is but a repetition of the same doctrine that was held in Griswold v. Sheldon (4 N.Y. [Comst.], 581), by BRONSON, J., concurred in by RUGGLES, JEWETT and McCOUN, JJ. He said, page 587: "If it is apparent, from the face of the deed, that the plaintiff intended that Burdick (the mortgagor) should not only have possession, but should be allowed to deal with the property as though he were the owner, no one will pretend that the mortgage can stand as against creditors and purchasers." That was also a case of a mortgage on a store of goods, where the goods were placed, and for the purpose of using it as a store. RUGGLES, JEWETT and McCOUN concurred with BRONSON on the ground that such a mortgage was void on its face. True, there was an equal division of the court on that question in that case, but the rule I have cited has been, as I regard it, established inEdgell v. Hart, confirming the same principle, as it was laid down in the case of Wood v. Lowry (17 Wend., 492), and holding that the case of Smith v. Acker 23 Wend., 658), does not establish a different rule. There is no case that has gone so far as to hold that the legal interpretation to be given to written agreements is a question for the jury. The case that has gone farther than any other in this direction, is Ford v.Williams (24 N.Y., 359). On the question of the bona fides of the mortgage, it was shown that the mortgagor continued in possession of the store from the time of executing it, and made sales of portions of the property apparently in the same manner as he had done before the mortgage; and it was proved by both parties to the mortgage, on the trial, and the judge allowed the proof, that when it was executed, it was agreed between them that the mortgagor should sell as he could find purchasers, for cash only, and that the whole proceeds of the sales should be applied upon the note to secure which the mortgage was given. DENIO, J., in commenting upon this evidence, says: "But if the debtor was permitted not only to retain the possession of the property mortgaged, but to sell it out by retail on his own account, as he had been doing before the mortgage, we think, with the judge who tried the case, that the arrangement would be fraudulent and the security void;" and after saying he would not advise creditors to resort to such a suspicious kind of security, he adds, "whether in a given case it was fair or fraudulent, would be a fact for a jury to determine;" he says, "it would be otherwise if the question depended upon the effect of a written instrument, as we held in Edgell v. Hart" (supra). In the case before us, there was no such agreement in or out of the written mortgage between the parties, though the plaintiff was permitted to prove, under objection, a conversation between the plaintiff and his mortgagor on the day of executing the mortgage, after its execution, as follows: "I (plaintiff) told him I wanted him to confine his sales to sales for cash, and apply the receipts to the payment of the paper on which I was liable as indorser, and I advised him to apply the receipts from collections to other confidential debts, and let the other debts go until his confidential ones were paid. He said he would do so; he seemed to assent to my views of the matter. He said he did not mean that I should lose a dollar by him, and was willing to secure me and execute the mortgage." If such conversation was admissible as evidence, it did not amount to an agreement between the parties. It amounts at most to mere advice given by the one, and an assent by the other, to follow the advice. Conversations and propositions made before or after a written agreement cannot be proved to explain it, or to add to that which is to be, or has been reduced to writing. The written agreement between the parties to it appears to be a complete agreement. The well established rule of law applicable to such agreements is, that the parties can neither add to, contradict or explain it by parol evidence. It is also a rule that instruments which give details or particulars are to be presumed to be complete. (Filkins v.Whyland, 24 N.Y., 338; 1 Wend., 424.) If this conversation could amount to a valid agreement, and is either the important part of the written one, or is a separate agreement as is claimed, it is void as against creditors for not being filed. If our statute in relation to fraudulent conveyances is worth preserving, the courts have gone quite far enough in the direction of a judicial repeal of its provisions, and of impairing a confidence in its policy. If there is one provision of the statute that is clear, it is that which requires all such agreements to be in writing. (2 R.S., 136, § 3.)

And it is only such written agreements that have been filed that are good against creditors. (Sess. Laws, 1833, p. 402; Bankof Rochester v. Jones, 4 Comst., 498; Thompson v.Blanchard, 4 id., 308.) No one will question the position, that with full knowledge of all the terms of the mortgage, any party purchasing goods of the mortgagor, by items or in gross, for cash or on credit, would obtain good title to the article purchased of the mortgagor. The statute puts creditors upon an equality of rights with purchasers. The case of McKinstee v. Babcock (26 N Y, 378), has no bearing upon this question. It holds that evidence may be given to show what was the real consideration of a mortgage. This had long been settled law in regard to the consideration of deeds. Nor is the case of Ford v. Williams (24 N.Y., 359), in conflict with the rule we hold in this. That case approaches this only as far as it presented a similar question as one of bona fides for the determination of a jury.

I think the judge on the trial erred in the admission of the evidence offered by the plaintiff, of conversations between himself and the mortgagor, at various times, before the execution of the mortgage, and on the same day, and on days subsequent. These conversations related to matters of business of the mortgagor, of advice to him by the plaintiff about his manner of conducting his business in future. These conversations were objected to as evidence by the defendant, the objections overruled by the judge, and the defendant duly excepted. We are furnished with no authority to sustain these rulings. Acts, and even sometimes declarations of the parties to a transaction, may be proved as forming part of the "resgestae," showing the character of the principal fact. This evidence does not come within that rule, it is put upon no such ground, nor could it be. It seems to me to be clearly error. If, against a case of presumptive fraud, a party can prove his own avowal of integrity to establish his bona fides, he would never be defeated, he would be sure to make them strong. The evidence of presumptions could never avail against him. The error, it seems to me, to be too palpable to admit of discussion. I think the judgment should be reversed, a new trial ordered, costs to abide the event.

BROWN, J., concurred with POTTER.

Judgment affirmed.