Dodge v. Potter

18 Barb. 193, 1854 N.Y. App. Div. LEXIS 40

• Court: New York Supreme Court
• Decided: June 5, 1854
• Status: Published

Opinion

By the Court, T. R. Strong, J.

The evidence which was received, that the $600 note was one of the notes referred to in and secured by the chattel mortgage, was properly admitted. The mortgage recites an indebtedness of the mortgagor to the mortgagee in a certain sum, the amount of two promissory notes made by the mortgagor and indorsed by the mortgagee, which, the latter has taken up and paid, and for the indorsement of another note, and provides for the payment of that indebtedness. This note for $600 was not indorsed by the mortgagee, and the objection to the evidence was that it would tend to change the consideration mentionedin the mortgage. The evidence showed that the note was made by the mortgagor, and was payable to the order of another person, who indorsed the same; that the mortgagee discounted the note ; and that the amount due upon the note was computed and embraced in the indebtedness specified in the mortgage. It is a familiar rule, that parol or verbal proof of extrinsic circumstances may be given, to apply a description to its subject matter, and that if it appears the description is in some respects erroneous, those parts may be rejected, and what is left, if sufficient of itself, alone be regarded. (Fish v. Hubbard, 21 Wend. 651. Dunning v. Stearns, 9 Barb. 630. Doe v. Roe, 1 Wend. 541. Loomis v. Jackson, 19 John. 448. Jackson v. Clark, 7 Id. 218. Cowen & Hill’s Notes, 1377, 1405. 1 Greenleaf’s Ev. § 285 to 288. Atkinson’s Lessee v. Cummins, 9 How. 479.) Within that rule the evidence received was proper. The following bases appear to me to be directly in point: Pierce v. Parker, (4 Metcalf, 80;) Johns v. Church, (12 Pick. 557;) see Cowen & Hill’s Notes, 1423, 4, 5.

The paper upon which the computation was made was one of the extrinsic circumstances, admissible upon the question of identity. The objection to the reading of the mortgage in evidence, and the motion for a nonsuit, for the reasons that the mortgage was filed by a person other than the town clerk, and that it was not numbered, were not well taken. The filing by a clerk in the store of the town clerk, in charge of the town clerk’s office, in the absence of that officer, was sufficient. (Bishop v. Cook, 13 Barb. 326.) It was the duty of the town clerk, and not of the mortgagee, to number the mortgage. (Laws of 1849, p. 105.) The rights of the mortgagee could not be impaired by the omission to perform that duty.

The evidence that the coach named “ Conhocton,” for the taking of which this action was brought, was included in the mortgage, was admissible. The mortgage describes, among other property, “one four-horse post coach called ‘ Steuben/ and another called 1 Mayday/ after which is added, 6 all at Hornellsville, employed in staging.’ ” It was proved that the mortgagor, at the time the mortgage was executed, was not the owner, or in possession of but two four-horse post coaches, one called “ Conhocton,” the other called “ Mayday,” and that there was not any coach called “ Steuben” at Hornellsville, or employed in staging there. The proof was objected to, on the ground that parol evidence could not be given to vary or explain the mortgage, and that the mistake could not be corrected. I am satisfied it was competent, within the rule above stated, in regard to applying by verbal proof a description to the subject described, and rejecting erroneous particulars.

The allowance of evidence that the defendants were informed, before the sale, of the mistake as to the name of the coach, cannot have produced any injury to the defendants.

The charge to the jury in regard to what coach was included in the mortgage, rejecting the first branch of it, which is explained in what follows, did not differ in its legal positions from the views herein expressed; the law was properly stated, and it was left for the jury to find the facts.

Upon the evidence as it stood, the instruction embraced in the second request was properly declined. There was no basis for such a belief as is therein referred to. The third request was erroneous, as it in part called for the submission to the jury of a question as to the construction and effect of the terms of the mortgage, which was matter of law, and belonged to the court. The matter of the fifth request was not proper for the jury.

[Cayuga General Term, June 5, 1854.

All the points relied on upon the argument have now been considered, and my conclusion is that the motion for a new trial should be denied.

New trial denied.

Johnson, T. R. Strong and Welles, Justices.]