ON REHEARING.
STOCKSLAGER, C. J.Counsel for respondent has filed a lengthy petition for a rehearing in this case, insisting — 1. “That the chattel mortgage in controversy is void ab initio; 2. That it was the intention of the trial judge to find the said chattel mortgage void in toto; -3. That the finding of the trial judge for the plaintiff in the sum of less than $2,400, the value of the .property as found by the jury, was for the purpose of reducing the damages to the amount of the original stock of goods upon which the' said mortgage was once a lien, and was within the equity jurisdiction of the court, even though the court found as it did, or intended to find the mortgage invalid.”
It seems to be conceded by all parties that by the terms of the stipulation entered into before the trial, but one question was to be submitted to the jury, and that was: ■“What was the value at the time and place said sale was *409made of the goods taken by defendant Steers as sheriff, under the mortgage in question on the eleventh day of August, 1904?” A. “$2400 (Twenty-four hundred dollars). H. C. Dippel, Foreman.”
It would seem from the stipulation that an answer to this question was to bind all parties to the litigation as to the actual value of the goods, and the court was also required to accept the finding of the jury on this question as final. After this question was determined by the jury the stipulation required the court to find whether the chattel mortgage was void as against the plaintiff at the time of the plaintiff’s appointment as trustee. And if the court find that said mortgage was at said time void as against the plaintiff, and further find the defendant had no valid lien as against the trustee by reason of such possession, judgment shall be entered in favor of the plaintiff and against defendants for the full amount of the value of said property as found by the jury; otherwise judgment to be for defendants. By the terms of this stipulation, whether equitable or otherwise, the issues were narrowed down to practically two questions: 1. The jury should determine the value of the goods; 2. The court should determine whether the chattel mortgage was void as against plaintiff as trustee, and judgment should follow the two findings. The finding of the jury is plain and unequivocal, but the findings of .the court are not in strict conformity with the stipulation.
On a further consideration of the record, we conclude that this case should be remanded to the lower court, with instructions to make findings of fact and conclusions of law 'in harmony with the stipulation and finding of the jury, and order judgment according to such finding and conclusions, and it is so ordered. Costs awarded to appellant.
Ailshie, J., and Sullivan, J., concur.