Gentry v. Kelley

1. Instbuotions — No Error. Both the instructions given and those refused examined, and held, that the record does not disclose any material error in connection therewith. 2. Chattel Moetoaoe— Validity — Intention of Mortgagee. Where the validity of a ohattel mortgage is involved in the issue on trial, it is not error to permit the mortgagee to testify directly what her intention in taking the mortgage was. 3. Remabks of Coubt — Harmless Error. The record examined, and held, that while the language of the court, expressing an opinion on a question of fact during the trial of the cause, in the presence of the jury, constitutes error, yet in this case, in view of the evidence on the point to which the remarks of the court related, such error is not material, and therefore not reversible.

Error from Saline District Court. Action by Elizabeth, S. C. Kelley against W. EC. Gentry, as sheriff of Saline county, to recover damages for the conversion of certain merchandise. Verdict for plaintiff. New trial denied, and judgment entered at the March term, 1889. Defendant brings error. The court below erred in giving the sixth paragraph of its instructions to the jury. No instruction is proper that is not based upon evidence given upon the trial of the cause. Thomp. Trials, § 2315, and cases cited; Swank v. Nichols, 24 Ind. 201; Coughlin v. The People, 18 111. 267; Webster College v. Tyler, 35 Mo. 268; Oliver v. The State, 39 Miss. 539; Cothran v. The State, 39 id. 547; Brown v. Insurance Company, 86 Mo. 54; Jones v. The State, 65 Gra. 506. We submit that there was not a word of evidence given upon the trial of the cause in the court below upon which to base that part of the instructions of that court. The court erred in refusing to give to the jury the fourth instruction asked for by the plaintiff in error, that if they believe “from the evidence that the plaintiff, at the time she let her two sons have the $7,000, intended the same as a gift to them, or as an advance not to be repaid to her by them, they will find for the defendant; and that in determining that fact they may take into consideration the relationship of the parties, the plaintiff and the said J. T. and A. D. Kelley, the difference in the dates of the notes and chattel mortgage, the fact that neither were given at the time the money was paid to them by the plaintiff, together with all other facts and circumstances connected with the case.” One of the principal questions involved upon the trial of the case in the court below was as to the fraudulent conduct of the defendant in error in accepting the notes and chattel mortgage from her sons, and one of the facts which we relied upon largely to establish that fraud was, that the money was given to the Kelley brothers upon the 23d day of November, 1887, while the notes showed upon their face that they were given November 23, 1888, which was after the suit of the Baker Wire Company v. Kingman & Kelley had been filed in the district court of Saline county, Kansas. The question thus presented was one of fact for the exclusive consideration of the jury, and it was highly improper and grossly erroneous for the judge of the court below to express his opinion upon that question of fact in the presence and hearing of the jury. MoMinn v. Whelan, 27 Cal. 320; Hair v. Little, 28 Ala. 236; Andrews v. Ketoham, 77 111. 377; The State v. HarJdn, 7 Nev. 377. But the court assumed that prerogative, and said, in the presence and hearing of the jury, that “it seems to me that it is plain from the mortgage here that this (referring to the date of the notes) is simply a mistake of the date of the year.” The only errors alleged and insisted upon in this court are in the instructions given by the court below and instructions refused. No complaint is made as to the rulings of the court on the admission of evidence except in one particular, wherein counsel for plaintiff in error claim that the court erred in permitting the plaintiff to testify with reference to her intentions and purposes in taking the mortgage upon the goods embraced thereby. That a party to a transaction which is alleged to be fraudulent may testify as to his own intentions and motives in the transaction has been decided and settled by this court, and such decision fully justifies and sustains the ruling complained of. Gardom v. Woodward, 44 Kas. 758. The first complaint is made as to the instructions of the court, being the paragraph marked 6. The particular complaint made to this instruction is, that the court told the jury that if they found from the evidence “that it was agreed at the time, outside of said mortgage, by the parties thereto, that the mortgagors should retain possession of said property and sell the same for plaintiff as her agents, and account to her for the proceeds of such sales after deducting reasonable expenses for making the same, then said mortgage is valid,” so far as the possession and selling of the goods was concerned, after such mortgage was given. The objection of counsel is extremely technical, and is based upon the erroneous idea that there was nothing in the evidence which tended to show that there was an understanding, about the time the mortgage was executed, that the mortgagors should continue in possession of the goods as agents of the mortgagee, and dispose of them for the payment of her debt. While there may not be any evidence showing that such understanding was indicated by any very formal agreements expressed in formal language, yet the testimony clearly shows that such was the intention and understanding of the parties, and the agreement was expressed with as much formality as one would expect between mother and sons. The words, “agreed at the time outside of said mortgage,” certainly cannot be taken to mean, or to be intended by the court to convey the idea, that such agreement must have been made at the exact moment when the mortgage was signed and delivered. The ordinary and reasonable construction to put upon the language is, that such agreement was had previous to the disposal of any goods, and that is all the law requires. Even if the instruction should be construed with the strictness of limitation as to time that counsel insist upon, then we submit that the instruction as given was prejudicial to the rights of the plaintiff below rather than of the defendant; for an agreement made cotemporaneously with the execution of the mortgage, or at any time thereafter but prior to the selling of the goods, would be sufficient to meet the legal requirements, and such a strict limitation as to time would be error of which the mortgagee might complain, but certainly not a creditor. Complaint is also made because, during the progress of the trial, the court, in passing upon an objection of the defendant with reference to the apparent discrepancy in the dates of the notes offered in evidence and the notes described in the chattel mortgage, stated that it seemed to the court that the discrepancy of dates was simply a mistake. Even allowing full weight to all that counsel say on this matter, the remark of the court was not to the jury, nor made under circumstances that could properly be considered as likely to influence the jury. If counsel, at the time, thought that the remark might prejudice any substantial right of the defendant, they should have requested the court to instruct the jury that they were not to consider it in arriving at their verdict.