Moebs v. Gardiner & Dent

44 App. D.C. 112, 1915 U.S. App. LEXIS 2687

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 1, 1915
• Docket: No. 2802
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The court committed no error in instructing the jury to return a verdict for $1,500, unless they found a lack of good faith on the part of the appellee. When the appellant permitted the lots mentioned in the contract to be sold under the deed of trust, the right to demand payment of $1,500 became fixed, whether appellant or a third party became the purchaser at the deed of trust sale. A sale had then been made and the property had not brought “as much as $2,000 over and above” the encumbrance. Under the terms of the contract, if those lots had sold for less than the encumbrance, the appellee still was to receive $1,500, and that was the amount the court permitted it to recover.

An examination of the contract between appellant and Lath-am discloses that it therein is specified that each party “sells and agrees to convey” certain real estate to the other. Latham then “agrees to deliver3 to appellant the live stock and chattels mentioned. Under the terms of this agreement, which purported to confer upon the appellant nothing more than a possessory right, we do not think the court erred in refusing to charge as requested. Under the facts stated, therefore, whether appellant or Latham was to assume this chattel mortgage was a question for the jury, and that question was fully and fairly submitted to that tribunal.

Nor was it error to refuse to permit the appellant to ask Latham how much he paid for the sixty-seven head of cattle. Whether he paid much or little had no bearing on the question which one of the parties assumed the chattel mortgage.

Judgment affirmed, with costs. Affirmed.