April 3, 1901. The opinion of the Court was delivered by The action of plaintiff was in claim and delivery, commenced on 30th day of January, 1900. After plaintiff had disclosed his entire case in the testimony offered by him, on motion of defendant, an order for nonsuit was made by Judge Klugh, before whom and a jury the action was being tried. The Circuit Judge gave no reasons for his action in the premises. The rule is well settled that a Circuit Judge should not grant an order of nonsuit unless the plaintiff has failed to offer testimony on some material point involved in the support of plaintiff's cause of action. In order to ascertain if the Circuit Judge made such error as is alleged in the grounds of appeal, it will be necessary to ascertain what the material points here involved were, and also if there was material testimony offered by the plaintiff in support of such material points. As before remarked, this is an action known to the profession as one in claim and delivery, for the recovery by the plaintiff as his property of *Page 152 two iron gray mules, named respectively "Jack" and "Bob," or $150, their value, in case the mules cannot be returned, which were taken wrongfully from the possession of said plaintiff by the defendant. It is admitted that up to November or December, 1899, these mules were in the possession of the plaintiff and were worth $150 when taken, and that they were taken by the defendant out of the plaintiff's possession. It is also admitted that on the 9th day of January, 1898, the plaintiff made and delivered to one P.B. Huntley his promissory note, due on the 1st October, 1898, for the sum of $82.70, and that the consideration of that note was the purchase price of one of the two mules, which was on that day sold by said P.B. Huntley to the plaintiff, Lowery. That on that day, the 19th January, 1898, the said plaintiff, Lowery, executed a sale bill of both of the gray mules then owned by said plaintiff (including the one gray mule that day bought by Lowery from P.B. Huntley). That the promissory note for $82.70 was transferred, after maturity, to wit: on 7th November, 1898, and also the sale bill of the two gray mules was assigned by said P.B. Huntley to the defendant, as committee for one W.S. Jackson, a lunatic; and that on the same day the said P.B. Huntley transferred two past due promissory notes made by the plaintiff, Lowery, to said P.B. Huntley unto the said defendant, as committee for said W.S. Jackson, a lunatic. It was also admitted that before this suit for said mules the plaintiff tendered the sum of $42.70 and the interest thereon, together with a sum of money sufficient to pay the costs and the expenses of seizing and keeping said two mules, unto the defendant, claiming that he had previously to 7th November, 1898, paid to P.B. Huntley the sum of $40 in cash, in part payment of said note for $82.70. It was in evidence by parol that the plaintiff retained possession of said mules covered by said bill of sale long after its execution, and that such paper, though its terms imparted an absolute sale, was really executed as a mortgage of the two mules to secure the payment of $82.70; that in September, 1898, the plaintiff did pay to P.B. Huntley *Page 153 $40 on this $82.70 note. Under these circumstances we do not see how the Judge could look upon the alleged bill of sale as anything else than a mortgage; that being a mortgage, it was in the power of the plaintiff, under the act of 1892 (see 21 Stat. at Large, page 7), which was intended, as indicated by its title, "As act regulating chattel mortgages and the payment and satisfaction thereof," to tender the mortgage debt and any costs incurred in attempting to enforce its payment, and such a tender so made shall render the mortgage null and void; and as there was evidence on this material point, it was for the jury and not the Judge, to say whether the tender was made as testified by witnesses to have been made; that the defendant having had the note and bill of sale — mortgage — assigned to him, after maturity of the note, took it with all its infirmities. We do not mean by what we say to pass upon the facts as testified to in any other way than as the Circuit Judge should have looked at them, to see if such testimony was material.
Let the Reporter incorporate the grounds of appeal in his report of the case. We sustain them as far as the foregoing views do so.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the action be remanded to that Court for a new trial.