Webber v. Emmerson

Thatcher, C. J.

Many of the errors assigned being founded upon exceptions to the instructions of the court, and to evidence not properly taken in the court below, cannot appropriately be considered here with a viéw to a reversal of the judgment. But for the purpose of indicating what is the approved practice in such cases, we will briefly refer to the fatal defects in some of the exceptions upon which errors have been assigned.

An exception was taken to the instructions en masse, prayed by the defendant and given by the court. These instructions involve distinct legal propositions, and while in our opinion they substantially present the law of the case, we are not called upon to examine them with a view to determine. If any single proposition embraced in the charge is sound,a general exception “to said instructions,” without either specifying the propositions deemed objectionable, or excepting to each and every of the instructions, is not available. Decker v. Mathews, 12 N. Y. 320; Hunt v. Maybee, 7 id. 273; Gray v. The People, 22 Mich. 220 ; Thrasher v. Tyack, 15 Wis. 258 ; Mershow v. National Ins. Co., 34 Iowa, 88 ; Johnson v. Jones, 1 Blackf. 220 .

A schedule of what purported to be the property described in the chattel mortgagee executed by Emmerson to Webber was received in evidence after Emmerson had testified that he had made the schedule and felt confident that it was very nearly * correct. The exception to the admission of the schedule is noted by the following memorandum in the bill' of exceptions: ‘ ‘ Schedule received in evidence and excep-5 *252 tion for plaintiff.” It is unnecessary to say that this exception is not in due form. It is no such exception as this court can recognize. It does not appear that any objection was interposed to the receiving of the schedule. A party cannot silently consent to the admission of evidence and then take an exception. An exception duly reserved, implies that an objection has been previously made to the admission of the evidence, and that such objection had been overruled by the court. But we are not permitted to take any thing by inference. That an objection to the admission of the evidence was made at the trial must affirmatively appear. A bill of exceptions must be construed most strongly against the partyexcepting, and we can make no intendznent in his favor. Again, the exception is general in its terms. The grounds of the objection are not specified. The attention of the court below and of the opposite party was not called to any particular objection, and, therefore, if any existed, no opportunity was given to remove it. This exception for these reasons cannot be considered. We will not pursue any further an examination of other exceptions, to which one or more of the same objections lie.

Where the evidence is clearly not competent in any view for any purpose, a general objection will be sufficient; but in all'cases where the evidence is susceptible of being made admissible by the introduction of further testimony, the specific ground of objection must be stated. The true rule is laid down in Cody v. Butterfield, 1 Col. 384 .

The motion to strike out certain testimony, covering as it does nearly all the material evidence in behalf of the defendant, is too broad. As when evidence is admitted without an exception properly reserved, it is esteemed to be received by consent of the party affected by it, and as much of the evidence admitted in behalf of the defendant in this case was pertinent and material, a general motion to strike out cannot be granted, nor will the court, upon such* general motion, search the whole evidence, with the view to ascertain if any testimony was improperly admitted. The motion *253 should be specifically confined to the objectionable evidence.

The sole purpose, for which evidence could be admitted of a sale of the mortgaged property by Emmerson to Allsberry, would be to show that the title to said property charged only with the lien of the mortgage, had vested by virtue of such sale to Allsberry; and that, therefore, if after such sale, Webber had converted the property to his own use without a sale under the mortgage, or had bought it under a mortgage sale, he would not be liable to Emmerson, but to Allsberry for the value of the chattels in excess of the amount due on the note at the time of such conversion, or such mortgage sale. In this view it was important that the character of1 the transaction between Emmerson and Allsberry should clearly appear. If the sal by Emmerson to Allsberry was bona fide and absolute, vesting the title in Allsberry subject to the lien, Emmerson under his plea of set-off could recover no judgment, unless for costs only, against Webber. If the mortgage sale had been conducted in strict accordance with law, and the property had been purchased, not by the mortgagee, but by one competent to buy, the liability of Webber would be measured by the value of the property, as determined by the price paid by the highest bidder, for the excess of which over and above the amount due on the note he would be required to account. But when the mortgagee, unmindful of his fiduciary relation, assumes, in the absence of an agreement with the mortgagor, to purchase the mortgaged property, and to appropriate it to his own use, he violates the trust reposed in him, and becomes liable for the actual value of the property at the time of such sale, without regard to the price bid.

The law prohibits a trustee, where interest and duty so clearly conflict, from purchasing and holding for his own use and benefit property toward which he sustains a fiduciary relation. Webber’s liability arises, therefore, not from the purchase made at the mortgage sale, but from *254 the fact that he reduced to possession, and without warrant of law converted to his own use, the mortgaged property.

It was competent to show at the trial the character of the alleged sale of the property in question by Emmerson to Allsberry, as so much of its value at the time of its conversion, as exceeded the amount of Webber’s lien, could not inure to the credit of Emmerson if he had before that time parted with the title, subject alone to the lien.

For the purpose of establishing the character of the sale, the defendant introduced the witness Stover, who testified to a conversation with Allsberry on the day of the mortgage sale. To the interrogatory, “What did Allsberry say?” a general objection was made, overruled and an exception taken. Is this question' admissible for any purpose ? We think not./

Allsberry, the witness testifies, declares that he was under no obligations to take the property, that he had already turned it over to the plaintiff, and that he would not have any thing more to do with it. This evidence, if it was admissible, tended to show that the sale to Allsberry had never been completed, that the title had never passed, and it may have influenced the verdict of the jury.

The witness Stover was not the agent of Webber. Webber himself was not present at the conversation, nor was there any privity between Webber and Allsberry. It is true that in certain cases the admission of third persons, strangers to the suit, are received in evidence, e.g., in actions against a sheriff for not arresting a debtor, or for allowing him to escape. Statements made by the debtor acknowledging the existence of the debt, being sufficient to charge the debtor in the original action, are evidence against the defendant. 1 Grreenleaf’s Ev., § 181; 1 Phillips’ Ev. 489.

: So carefully is this principle guarded and restricted that even in the case of an escaped debtor, to bind the sheriff, the debtor’s acknowledgment of the debt must have been made before his escape. Rogers v. Jones, 7 B. & C. 89.

*255 The admission of the debtor in each case cited by Green-leaf and Phillips 'are clearly against his own interest. Bnt this principle cannot be invoked in aid of the declarations and admissions uiider consideration. The declarations of Allsberry, made after he had parted with the possession of the property, amounted to a disclaimer of any liability on his part to Emmerson, and were, therefore, declarations in his own favor. They were improperly admitted in evidence. We discover no other material error in the record that we are at liberty to consider.

As the sufficiency of the plea of set-off was not raised in the court below, and has not been questioned here, we will not pass upon it.

As the j ury may have been misled by the evidence of Stover, the judgment of the probate court must be reversed, with costs, and the cause remanded to that court for further proceedings according to law.

Reversed.