Johnson v. Rider

Robinson, J.

The petition was filed on the thirtieth day of March, 1882, and demands judgment against the defendant for the sum of one hundred and ten dollars, with interest and attorney’s fees, on a promissory note made to him, dated February 20, 1878, for seventy-one dollars, with interest thereon at ten per cent, per annum, payable annually. The answer denies that the note is unpaid, and alleges that *51 in April, 1878, one Hicks was indebted to the defendant in the sum of seventy-three dollars, and was also indebted to the plaintiff; that at that time it was agreed between the defendant and Hicks that the latter should make to the former a promissory note for said sum, and secure it by a chattel mortgage; that afterwards, and before the note and mortgage were given, it was verbally agreed by Hicks, the plaintiff, and the defendant that the indebtedness of Hicks to the plaintiff and the defendant should be evidenced by promissory notes made payable to the plaintiff, and secured by a chattel mortgage on property of Hicks, executed to the plaintiff, and that out of the proceeds of the mortgaged property the amount due should be first paid; that notes were given to the plaintiff as provided by said agreement, and a mortgage to him to secure their payment was executed on a part of the crops to be grown on land which is specified. The answer further alleges that the plaintiff has received upon the notes and mortgage the sum of one hundred dollars, and more than the indebtedness of Hicks to the defendant, and that the plaintiff refuses to pay to the defendant -the sum due him from Hicks. In an amendment to the answer it is further alleged that in August, 1878, the defendant stored in the name of the plaintiff a •quantity of wheat, of the value of sixty-two dollars, which amount was received by the plaintiff, and that when the note in suit became due the plaintiff was indebted to the defendant for the amount so received, no part of which has been paid. The plaintiff admits having received the proceeds of the mortgaged property, but alleges that they were properly used in paying indebtedness in which the defendant was not interested, and denies having received anything on account of grain stored as alleged.

When the evidence had been fully submitted, the court charged the jury to return a verdict in favor of the plaintiff for the amount of the note, and refused to *52 give certain instructions asked by the defendant. The jury retired to deliberate, and after a time returned a verdict in favor of the plaintiff for the sum of twenty-two dollars and eighty-five cents. The verdict was-delivered to the court, and read by it, and, thereupon,, it verbally directed the jury that the verdict was not in accordance with the charge given them, and that they must compute the amount due on the note according to the charge. The jury again retired, and on the same day returned a verdict in favor of the plaintiff for the sum of one hundred and ninety-two dollars and thirty-two cents. The defendant filed a motion for a new trial, based on several grounds, one of which was-that the verdict was excessive. Pending the motion, the plaintiff remitted all of the verdict in excess of one hundred and eighty-four dollars and ninety cents. The motion was overruled, and judgment was rendered for the amount last stated, with attorney’s fees and costs.

I. The appellant seems to have abandoned all claims made in his answer excepting that set up in the 1. Chattel Mortgage: description: validity. amendment. It appears that in the year 1878 Hicks carried on a farm owned by under a verbal lease, by virtue of which Hicks was to deliver to the plaintiff as rent, one third of the crop grown on the premises. In April, 1878, Hicks was owing the plaintiff a sum of money, and, to secure its payment, executed a mortgage to him, in which the property to be included therein was described by the mortgagor as follows: “All of my undivided two-thirds interest in any and all crops grown or to be grown during the year 1878 in and upon the north half of the southwest quarter of section five, in township eighty-four north, of ran'ge fifteen west, in Tama county, Iowa; said farm being known as the ‘Burke farm.’ Said crops grown as aforesaid are to be wheat, oats and other farm products.” The farm described was the one owned by *53 the plaintiff, as already stated. The mortgage was ■duly recorded on the day it was given. Of the crops raised on the leased premises three loads of wheat were delivered by Hicks to the defendant, and hauled to an elevator in Toledo, where they were stored in the name of the plaintiff, and he received their value.

It is the theory of the plaintiff that he was entitled to the wheat by virtue of his mortgage, while the defendant insists that the mortgage gave to the plaintiff no right to the wheat, for the reason that the description of property contained in the mortgage was void for uncertainty. It will be noticed that the mortgage does not attempt to create a lien upon a separate part of a quantity of grain described; and, therefore, cases like that of Meredith v. Kunze, 78 Iowa, 111, are not in point. The description is of all the mortgagor’s “undivided two-thirds interest” in the crops described. The property mortgaged was a specified and undivided part of an entirety, which was accurately and fully described. Until the property was divided, the interest mortgaged was a part of the whole; but, when the division was effected, the interest conveyed by the mortgage was separated and definitely fixed. The description given was as specific as it was practicable to make it when the mortgage was given, and was so certain that there could have been no doubt as to the precise interest which the mortgage was intended to create. There was uncertainty, necessarily, as to the grains of wheat which might eventually be set apart as- the property of the mortgagor, but no more than there would have been had the mortgaged property been described as his entire interest in the crops specified. We conclude that the description in the mortgage was sufficient. See Jones on Chattel Mortgages, sec. 59; Potts v. Newell, 22 Minn. 562; Zehner v. Aultman, 74 Ind. 24.

ÍI. It is contended that the court erred in requiring the jury, by verbal direction, to retire a *54 2. Practice: instructions as to verdict: misconduct of jury. second time and consider their verdict. The charge given to the jury, when the case was first submitted to them, was as ' follows: “You will find a verdict for plaintiff! for the amount due on the note of plaintiff in suit, being for seventy-one dollars, dated February 20, 1878, and drawing ten per cent, interest per annum on each year’s interest from the time it became due and payable.” In returning the first verdict the jury were guilty of a gross violation of the charge. What the court said in regard to a second verdict was not an instruction, within the meaning of the statute, but a mere direction to return a verdict in accordance with the charge which had been given them, and prejudicial error could not have resulted from it. Milne v. Walker, 59 Iowa, 186; Allen v. Wheeler, 54 Iowa, 630; Stone v. Chicago & N. W. Ry. Co., 47 Iowa, 90.

III. The charge of the court requiring the jury to return a verdict for the amount due on the note was 3. -: -: motions. given on motion of the plaintiff. The appellant criticises the motion for the reason that no ground thereof is alleged. It was competent for the court to direct a verdict on its own motion; therefore, it could disregard the omission of the plaintiff and direct a verdict, as was done.

IV. Some question is made as to the amount of the judgment, and it is said it is greater than that demanded in the petition. • The relief granted was consistent with the case made by the petition, was embraced within the issues presented by the pleadings, and was shown by the evidence to be due the plaintiff. Wé do not think the judgment should be disturbed on the ground that it is excessive. AeeirMed.