Lincoln National Bank & Trust Co. v. Parker

The appellant, Lincoln National Bank and Trust Company of Fort Wayne, filed an action to replevy twenty-four (24) Hereford heifers, alleged to be the property of appellant and located on a farm owned by the appellee, Warren E. Parker. The issues were made by an answer of general denial to appellant's complaint. The issues were submitted to a jury which returned a verdict in favor of the appellee; and appellant, on appeal, is relying upon alleged error of the court below in overruling its oral motion to instruct the jury to return a verdict for it and in overruling its motion for a new trial.

On November 7, 1938, one Joy Smith of Allen County, Indiana, purchased of the E M Cattle Company of Whitley County, Indiana, sixty (60) Hereford heifers, and to secure the purchase price thereof, evidenced by a promissory note, executed to the seller a chattel mortgage thereon. In such chattel mortgage the property was described as follows:

"60 Hereford Heifers Branded — L

"Cattle located in Allen County, Lake Twp. 5 miles South Churubusco, Ind. on the Hildebrandt Road."

On November 9, 1938, such chattel mortgage was duly assigned to appellant and was then duly recorded in Allen County, Indiana, the county where the mortgagor resided and the county where the mortgaged property was then located. At the time of the purchase of the cattle and the execution of the note and mortgage therefor, the cattle were located at the farm of E M Cattle Company in Whitley County, Indiana, but immediately thereafter they were moved to the farm of the mortgagor in Allen County, Indiana. *Page 7

On November 23, 1938, appellee purchased twenty-four (24) head of heifers, at public auction held at a sale barn in Ligonier, Indiana, and on April 29, 1939, appellant demanded the possession of the twenty-four (24) heifers, so purchased by appellee, as a part of the property covered by its chattel mortgage. A writ of replevin was issued on April 29 and seventeen (17) heifers, found in barn of appellee, were seized by the sheriff on such writ.

During the trial one question of fact for determination by the jury was whether the twenty-four (24) heifers, purchased by appellee, were the identical cattle covered by the chattel mortgage assigned to appellant, and appellant is contending that the evidence is without dispute concerning this issue and that the trial court erred in overruling its motion to instruct the jury to return a verdict for it.

The rules by which we are governed in a determination of this issue, are clearly laid down in the case of Haughton v. 1-4. Aetna Life Insurance Co. (1905), 165 Ind. 32, 39, 73 N.E. 592, 74 N.E. 613, where the court says:

"The Constitution of this state (Art. 1, § 20) provides: `In all civil cases, the right of trial by jury shall remain inviolate.' Courts have guarded this right, with scrupulous care, against any encroachment. In all cases triable by jury the jurors are the sole and exclusive judges of the facts proved, and, of necessity, therefore, of the credibility of witnesses, and of the weight to be given to their testimony.

"Where upon a material point there is a failure of proof in the evidence of the party having the burden of an issue, the court may, as a matter of law, instruct the jury in favor of the other party to such issue. Where the facts are admitted by the pleadings or otherwise, or where the evidence upon the controlling question is documentary, and its interpretation and construction a matter for *Page 8 the court, and but one conclusion reasonably deducible therefrom, then in such cases the court may, as a matter of law, direct a verdict in accordance with the evident facts, and in favor of the party having the affirmative of the issue.

"But where a determination of the issue involves the credibility of witnesses, and rests upon inferences and deductions to be drawn from facts proved, it will be an invasion of the province of the jury for the court to direct a verdict."

See, also Mesel v. Farmers' etc., Bank (1932), 95 5. Ind. App. 33, 43, 178 N.E. 305; State v. Kubiak (1936), 210 Ind. 479, 481, 4 N.E.2d 193.

In considering a motion for such instruction, the court is bound to accept as true all facts the evidence tends to prove and all inferences reasonably deducible therefrom against the party so moving. Farmers Nat. Bank v. Coyner (1909),44 Ind. App. 335, 339, 88 N.E. 856.

Time and again this court and the Supreme Court of this State have determined that they will not weigh conflicting evidence on appeal, nor will they determine the credibility of 6-9. witnesses. The only circumstance under which this court, on appeal, will weigh evidence of any character is where it can be placed in as favorable a situation as the trial court to correctly weigh it. State ex rel. v. Davisson (1910),174 Ind. 705, 93 N.E. 6. When this court says that it will not weigh evidence or determine the credibility of witnesses, it does not mean, only, that it will not weigh the testimony of one witness as against the conflicting testimony of another witness. It also means that it will not weigh one portion of the testimony of a witness as against another portion of conflicting testimony of the same witness. If a particular witness, while testifying, makes assertions that are contradictory, *Page 9 this court, on appeal, will not determine which of the assertions are true. The trial court or the jury trying the cause are in a different situation. They observe the witnesses when they testify, and it is within their province to determine what assertions made by a particular witness are true and what assertions made by the same witness are untrue. Fitch v.Ingalls (1930), 271 Mass. 121, 170 N.E. 833.

The appellant in this cause is contending that if we take the testimony as a whole, it will show conclusively that the twenty-four (24) head of cattle purchased by appellee were the same cattle that were covered by the chattel mortgage of appellant. At the same time, appellant complains because appellee, by taking isolated statements of witnesses, instead of the testimony of such witnesses as a whole, argued, successfully, to the jury and the court below that the cattle purchased by appellee were not the same cattle that were described in its chattel mortgage. In other words, appellant is asserting that if you take isolated statements of a witness and reject other testimony of the same witness, that there is testimony in the record which would tend to show that the cattle purchased by appellee were not the same cattle described in the chattel mortgage; but that if you take all of the testimony of all of the witnesses and weigh the isolated statements along with other testimony of the same witnesses, that the testimony, as a whole, will show conclusively that the cattle purchased by appellee were identical with the cattle described in the chattel mortgage.

But this court, in deciding whether the trial court erred in overruling the motion for a directed verdict, and in 10, 11. deciding the sufficiency of the evidence to sustain the verdict, does not consider the *Page 10 evidence as a whole. Judge Lairy, in the case of Monfort v.Indianapolis etc., Traction Co. (1920), 189 Ind. 683, 686, 128 N.E. 842, has well stated the applicable rule in a case where the trial court directed a verdict in favor of the defendant, in the following language:

"In sustaining that motion the court held that there was entire absence of any evidence to support some one or more of the facts essentially necessary to uphold a verdict in favor of appellant. In deciding the question so presented, the trial court was required to consider only the evidence most favorable to the plaintiff, excluding all conflicting evidence favorable to the defendant. All facts supported by such evidence, as well as all facts which can be rightly and reasonably inferred therefrom, must be regarded by the court as proved in passing on the motion to direct a verdict."

And, further:

"The same rules apply when the question arises on a motion to direct a verdict."

And, further:

"The same rules also apply when the sufficiency of the evidence to sustain a verdict is presented on appeal."

When we consider the evidence most favorable to the appellee and exclude all conflicting evidence favorable to the appellant, we find that there is evidence in the record which would prove that the cattle purchased by appellee were not the identical cattle that were covered by the chattel mortgage of appellant.

It is plain that appellant is seeking to have this court weigh the evidence and to determine whether the effect of evidence favorable to the appellee is overcome by evidence favorable to the appellant.

But the identity of the mortgaged property was not the only question of fact before the jury for determination. There was also the question of whether appellee *Page 11 was a purchaser with actual or constructive notice of appellant's mortgage. While it is true that the trial court, by giving to the jury instruction No. 4, tendered by the appellant, instructed the jury that the description in the chattel mortgage would enable third persons, aided by inquiry which the instrument itself indicated or suggested, to identify the mortgaged property, when we consider this instruction along with other instructions given by the court, we do not believe that the effect or purpose of the court's instructions, taken as a whole, was to eliminate consideration by the jury of the question, of whether the description in the chattel mortgage was sufficient, when aided by inquiry suggested and directed by the mortgage itself and information gained by such inquiry, to lead to a discovery of the property covered by appellant's mortgage. If the jury determined, as a fact, that the appellee could not identify the mortgaged property from the description contained in the mortgage, aided by inquiry suggested and directed by the mortgage itself and information gained by such inquiry, such determination would be sustained by evidence. The mortgage described the cattle as "Branded — L," while the cattle purchased by appellee were not "Branded — L."

While the sufficiency of the description contained in a chattel mortgage is a question of law, yet, if reasonable men could draw different conclusions from the evidence, the identity of 12, 13. the property is one of fact. Where extrinsic evidence is adduced to identify the property and such extrinsic evidence shows a misdescription rather than an insufficient one, the jury may determine whether or not it is sufficient, notwithstanding the false recitals, to put a third person on sufficient inquiry to lead to a discovery of the property covered by the mortgage. 11 C.J. § 103, p. 472; *Page 12 14 C.J.S. § 71, p. 684; Wertheimer Degen v. Shultice (1926), 202 Iowa 1140, 1147, 211 N.W. 568, 572; Central SavingsBank Trust Co. v. Hall (1923), 73 Colo. 17, 213 P. 116;State Bank v. Murphy (1923), 110 Neb. 526, 194 N.W. 442.

In the case of Wertheimer Degen v. Shultice, supra, the court says:

"The description in the mortgage on its face is sufficient in law. Whether, on the facts, it is sufficient to put the purchaser on inquiry may, in the farther progress of the case, be a question for the jury."

There was evidence which showed a misdescription in the chattel mortgage. The jury, acting within its province, might have determined that such misdescription was of such a nature 14. that the appellee, although aided by all the other provisions of the mortgage, and although making all the inquiry which the mortgage suggested, would not by the exercise of ordinary care have identified the property purchased as property covered by the mortgage. Under such circumstances we cannot say that the verdict of the jury is not sustained by sufficient evidence or that the trial court should have directed a verdict for the appellant.

Appellant attacks the action of the trial court in giving, of its own motion, each of instructions Nos. 5, 6, 7, 8 and 10. These instructions are attacked on the ground that in the 15. instruction the court used the words, "described in said mortgage," or words of similar import, and that the court should have used the words, "covered by said mortgage." Appellant seeks to point out a distinction between the phrases which we are unable to appreciate. We believe the phrases would be equivalent in their effect upon the jury and that the jury was not misled or confused by *Page 13 any of the instructions given by the court of its own motion. None of the instructions of which appellant complains were, in our opinion, inconsistent with other instructions given by the court, nor would any of them tend to mislead the jury. All the instructions given by the court were fair to the appellant. They fully covered all the issues involved in the cause.

Appellant also objects to the refusal of the court to give each of its requested instructions Nos. 1, 2, 3, 5, 8, 9, 10, 11, 12 and 13. Instruction No. 1, tendered by appellant, was in effect the same as its motion for a directed verdict. We have carefully examined the other instructions tendered and we believe that they are fully covered by instructions given by the court in as far as they correctly state the law.

Appellant is also objecting to the action of the trial court in sustaining objection made by appellee to certain questions propounded by the appellant to the witnesses Joy Smith and Dane Secrist. These questions sought to bring out items of a conversation between Joy Smith and Dane Secrist that was held outside the presence of the appellee, Warren E. Parker, and after he had purchased the cattle. Appellant is urging that the conversation was proper because Dane Secrist, at the time the conversation was held, was an agent of appellee. It appears from the record that after appellee purchased the twenty-four (24) head of heifers he was going home and met Dane Secrist in the sale barn, and that Secrist, who had also purchased some cattle at the sale, told appellee that he wondered if there was a mortgage on the heifers, and that appellee told Secrist, "you find out and if there is let me know." Thereafter, there was no conversation between appellee and Secrist about what he found out. It is appellant's contention that this transaction created the relationship *Page 14 of principal and agent between appellee and Dane Secrist and that any knowledge obtained by Secrist would bind appellee, and that evidence of conversation between Secrist and Joy Smith was admissible although appellee was not present.

The definition of "agency" as adopted by the 16, 17. American Law Institute, Restatement of the Law, Agency, § 1, p. 7, is as follows:

"Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."

Agency is defined by 2 Am. Jur., § 2, p. 13, as follows:

"An agency may be defined as a contract either express or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which that other assumes to do the business and to render an account of it."

The conversation between appellee and Dane Secrist did not have the effect of making Dane Secrist an agent. Dane Secrist did not consent to act for appellee and on his behalf and subject 18. to his control. Dane Secrist was interested personally in ascertaining whether there was a chattel mortgage on the cattle that he had purchased. Appellee merely suggested to him that if he found there was a chattel mortgage to let him know. This did not create an agency so that appellee would be bound by the knowledge of Dane Secrist, nor would conversations between Dane Secrist and a third party be admissible to bind appellee.

Appellant is also objecting to the action of the trial court in overruling its offer to introduce into evidence *Page 15 Exhibits "I" and "J". Exhibit "I" was the original 19. criminal affidavit filed by the State of Indiana against Joy Smith for the sale of mortgaged property that was purchased by appellee, and Exhibit "J" was the record of the Noble Circuit Court showing that Joy Smith entered a plea of guilty to the charge of having sold appellee the cattle that were covered by chattel mortgage of appellant. Appellee was not a party to the cause in which such criminal affidavit was filed; he did not sign the affidavit. The affidavit was made long after the purchase of the cattle by appellee, and the evidence clearly was not admissible in this action against appellee.

Finding no reversible error in the record, the judgment is affirmed and it is so ordered.

NOTE. — Reported in 34 N.E.2d 190.