Opinion
June 25, 1925.
APPEAL AND ERROR: Scope of Review — Finding of Trial Court. In an action tried to the court without a jury, wherein plaintiff-mortgagee sought recovery of the defendant for the conversion of the mortgaged chattels, a finding by the court that the identification of the property received by the defendant as the property covered by the mortgage was too indefinite to support any conclusion, will not be disturbed on appeal; it appearing from the record that such identification rested on a mere matter of inference from other proved matters, in spite of the fact that direct testimony was available and not produced.
Headnote 1: 4 C.J. p. 883.
Appeal from Harrison District Court. — EARL PETERS, Judge.
ACTION at law for damages for conversion of corn, upon which the plaintiff held a chattel mortgage. Jury was waived, and trial had to the court. Upon a full hearing of the evidence, there was a judgment dismissing the petition, and the plaintiff appeals. — Affirmed.
Cochran Wolfe and Prichard Prichard, for appellant.
C.W. Kellogg and H.L. Robertson, for appellees.
I. The record presented to us involves two cases, which by agreement were tried together in the district court. They are submitted here upon the same record. Each case was brought by the same plaintiff against the defendant DeCou and the defendant Barry, respectively, claiming separate damages from each defendant for the value of certain corn purchased by each, from the plaintiff's mortgagor. The plaintiff held a chattel mortgage executed by J.W. Donnelson and wife, which purported to cover all crops raised in the year 1921 upon certain described land in Harrison County. The principal disputed question of fact is whether the plaintiff sufficiently identified the corn separately purchased by the defendants respectively, as being covered by its mortgage. To avoid confusion, we deal first with the DeCou case. DeCou purchased by telephone from Florence Donnelson, daughter of John W. Donnelson, certain corn. He also purchased some in like manner from one Clark, or Seabury (the record is not clear which one). There was evidence that this corn was shelled on the Donnelson farm. The evidence was probably sufficient to warrant an inference that the corn was actually raised upon the particular farm described in the mortgage. But there was no direct evidence to that effect. The testimony as it was, was somewhat confusing and contradictory. Direct evidence was available. Donnelson was in court, but was not used. If we were to try the case de novo, we would be inclined to indulge in the inferences suggested. But the question was one for the trier of fact. The court, sitting as a jury, was the sole judge of the inferences that were fairly deducible from the evidence. The fact that the identity, if true, was readily proved by direct evidence, doubtless influenced the trial judge in refusing to indulge in inferences. In the absence of more direct evidence of identification, we would not be justified in interfering with the finding of fact.
It is argued by appellant that the court erred, as a matter of law, in that it sustained a motion by DeCou, as it were, to direct a verdict. That is to say, DeCou moved for a dismissal of the petition, and for judgment. The record discloses that DeCou did so move at the close of plaintiff's evidence, and his motion was overruled. At the close of all the evidence, he renewed his motion. At that time the court ruled as follows:
"* * * The motion of the defendant DeCou for a directed verdict is sustained on the ground that the evidence relating to the corn that was delivered to DeCou is so indefinite and uncertain — contradictory — that the court does not feel that it is sufficient to justify it in deciding in favor of the plaintiff on the DeCou case."
It will be seen that this was a finding of fact by the court, upon a consideration of all the evidence before it. There was no occasion for DeCou's motion, and it is apparent from the record that it served no function at that stage. It was a mere formality, in any event, and only a method of asking the court to render a decision.
II. What we have said in the foregoing division is applicable also to the case against Barry. The case against her is somewhat stronger than that against DeCou, so far as the question of identification is concerned; but here also direct evidence identifying the corn as having been raised on the particular land described in the mortgage is wanting. The witness Ehlert did testify that the corn was raised on the Donnelson farm in Magnolia Township. But he also testified to his want of knowledge of what lands had been devoted to corn-raising by Donnelson, and thereby reduced his evidence to a matter of inference and conclusion on his own part. The only description given by him of the farm was that it was in Magnolia Township. There was no evidence that the farm described in the mortgage was in such township. Hubbard testified, in the first instance, quite categorically on this subject. But his cross-examination disclosed that he was not testifying from personal knowledge, but giving his conclusions only. Thereupon, on motion of the defendants, his evidence was stricken. No error is assigned on such ruling. Hubbard's evidence, therefore, is not to be considered. On the whole record, therefore, we think the finding of fact by the district court is conclusive upon us.
The record presents an issue on the question of constructive notice, because of alleged faulty indexing of the plaintiff's chattel mortgage. In view of our conclusion on the other feature of the case, we have no occasion to consider this question.
The judgment of the district court is, accordingly, affirmed. — Affirmed.
FAVILLE, C.J., and ARTHUR and ALBERT, JJ., concur.