Opinion
No. 35999.
January 14, 1946. Suggestion of Error Overruled February 25, 1946.
1, CHATTEL MORTGAGES.
At common law a chattel mortgage by parol on personal property of a value of $50 or more without delivery of property to mortgagee is valid as between parties.
2. FRAUDS, STATUTE OF
A chattel mortgage given by parol on personal property of a value of $50 or more without delivery of property to mortgagee is valid (Code 1942, sec. 268).
3. APPEAL AND ERROR.
Verdict was sufficient to support judgment although apparently consisting of an unsigned writing found on a separate sheet of paper, where verdict on which the court acted was recited in the judgment itself and there was nothing in the record to show that jury did not amend their verdict and return it in the amended form recited in the judgment.
4. APPEAL AND ERROR.
Verdict, when and as recorded on the minutes, is the only one to which the appellate court can look in determining whether it is sufficient to support judgment.
APPEAL from circuit court of Coahoma county, HON.E.H. GREEN, Judge.
J.H. O'Neal, of Clarksdale, for appellant.
The verdict is insufficient in form and contents to support the judgment.
Lloyd et al. v. Goodwin, 12 Smedes M. (20 Miss.) 223; Spratley v. Kitchens, 55 Miss. 578; Pittman v. Eberhart Dental Supply Co., 168 Miss. 23, 150 So. 813; Johnson v. Ferguson, 144 Miss. 464, 110 So. 230; Oppenheimer v. Telhiard, 123 Miss. 111, 85 So. 134; Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9; Myer v. Warner, 64 Miss. 610, 1 So. 837; Whittaker v. Godwin, 97 Miss. 663, 53 So. 413; Anderson v. Tyson, 6 Smedes M. (14 Miss.) 244; Bedon et al. v. Alexander, 47 Miss. 254; Pearce v. Twichell, 41 Miss. 344; Drane v. Hilzheim, 13 Smedes M., (21 Miss.) 336; Atkinson v. Foxworth, 53 Miss. 733; Clarke v. Parker, 63 Miss. 549; Cox v. Martin, 75 Miss. 229, 21 So. 611, 36 L.R.A. 800, 65 Am. St. Rep. 604; Williams v. Williams, 117 Miss. 251, 78 So. 152; Bates v. Snider, 59 Miss. 497; Hill v. Petty, 111 Miss. 667, 71 So. 910; Eaton v. Barnhill, 68 Miss. 305, 8 So. 849; Graham v. Swinney, 174 Miss. 579, 165 So. 438; Saenger Theatres v. Faulk (Miss.), 193 So. 910; Quarles v. Hucherson, 139 Miss. 356, 104 So. 148; Mills Novelty Co. v. Transeau (Del.), 197 A. 187, 192; Lee v. Wagner (Ark.), 47 S.W.2d 334; Code of 1942, Secs. 268, 2841, 2860; 37 Words and Phrases (Per Ed.), p. 19.
The chattel mortgage, if it be one, is void under Section 268 of the Code of 1942, the amount involved being more than $50, and the statute of frauds would prevent the recovery by the appellee.
Breland, Brocato Lowrey, of Clarksdale, for appellee.
An oral mortgage is valid as between the parties, even though not accompanied by a delivery of the property to the mortgagee, provided it contains all the essential elements of a written mortgage.
10 Am. Jur. 750; 6 L.R.A. 641; 7 L.R.A. (N.S.) 418; 1 Am. St. Rep. 237.
Section 3347 of the Code of 1930, Section 268 of the Code of 1942, has no application whatever to chattel morgages nor to the case at bar.
After default where the mortgagee is entitled to possession, he may maintain an action to recover possession of the mortgaged chattels from the mortgagor or from any person in whose hands he may find them.
Podrat v. Oberndorff, 207 Cal. 457, 63 A.L.R. 1308; 10 Am. Jur. 832.
The sheriff appraised the car at $100 and this was prima facie proof of its value.
Bedon v. Alexander, 47 Miss. 254.
When the evidence all shows that the property is worth more than the claim of the plaintiff, there is no occasion to submit the question of the value of the property to the jury, but only the question of plaintiff's interest therein being a limited interest.
Bates v. Snider, 59 Miss. 497; Hill v. Petty, 111 Miss. 667, 71 So. 910.
A general verdict finding for the plaintiff and the value is sufficient to support a judgment in the alternative for the return of the property or payment of its value.
Kunz v. Nelson, 94 Utah 185, 115 A.L.R. 1322; 46 Am. Jur. 64, 65, Sec. 117.
The verdict need not be in the words of the issue, or technically embrace all the issues. It is sufficient if in sense or legal effect it substantially responds to the pleadings and covers the issues, and it cannot be objected to a verdict that it is too broad if every essential matter put in issue is concluded by it.
64 C.J. 1074-1075.
No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein.
Eaton v. Barnhill, 68 Miss. 305, 8 So. 849; Code of 1942, Sec. 1518.
The appeal court will not consider alleged errors which inhere in the verdict and upon which the trial court was not given any opportunity to rule.
Graham v. Swinney, 174 Miss. 579, 165 So. 438; Flynn v. Kurn, 183 Miss. 413, 184 So. 160; Saenger Theatres v. Faulk (Miss.), 193 So. 910.
The erroneous recitation contained in the judgment is not grounds for reversal.
Code of 1942, Sec. 1544; 34 C.J. 236, 237, Secs. 457, 458.
Argued orally by J.H. O'Neal for appellant.
The principal point in this case is whether a chattel mortgage may be given by parol on personal property of a value of fifty dollars or more and when there has been no delivery of it to the mortgagee — a new question in this state so far as we can find. It is not contended that the oral language here used was insufficient, as to which compare Pincus v. Collins, 198 Miss. 283, 22 So.2d 361, and there is adequate testimony to support the verdict on the facts.
It seems to be well recognized that at the common law such a mortgage is valid as between the parties, and this is supported by the latest texts and the cases cited therein. See 10 Am. Jur., Chattel Mortgages, Sec. 52, p. 750, and 14 C.J.S., Chattel Mortgages, sec. 49, p. 654. Some difference of opinion among the cases has arisen, however, whether the statute of frauds, our Section 268, Code 1942, Section 3347, Code 1930, dealing with sales of personal property, requires a chattel mortgage of property of fifty dollars or more in value to be in writing, but the weight of authority appears to be in the negative on the ground that while a chattel mortgage embraces some features of a sale, yet the relationship is not that of seller and buyer, and that when the money is advanced at the time of the mortgage agreement this will be tantamount to a payment in part of the purchase price which will itself take the transaction out of the statute. See 49 Am. Jur., Stat. Frds., sec. 241, pp. 558, 559; 37 C.J.S., Frauds, Statute of, sec. 141, p. 626.
We must, therefore, answer the question stated in the first paragraph hereof in the affirmative; and while it may be thought on a casual approach that a contrary rule would be safer and better, it will be found upon a close examination of the reported cases that under a variety of circumstances justice would sometimes be defeated unless the rule were upheld as stated.
It is complained that the verdict is insufficient in form and in contents to support the judgment. The verdict of which appellant speaks is an unsigned writing found apparently on a separate sheet of paper, but the verdict on which the court acted is recited in the judgment itself and thus the verdict recited in the judgment is the recorded verdict, and the verdict when and as recorded on the minutes is the only one to which the appellate court can look, 64 C.J., p. 1103; and certainly so when, as here, there is nothing in the record to show that the jury did not amend their verdict and return it, before being released from the case, in the amended form recited in the judgment. 2 Thompson on Trials, Sec. 2635, p. 1920.
As to the other procedural points, they were not made in the trial court and are such that they may not, for the first time, be urged on appeal.
Affirmed.