The opinion of the court was delivered by
Smith, J.:The errors complained of relate to the giving of instructions excepted to by plaintiff, and the refusal to give others asked by plaintiff. In the first *403instruction given of which complaint is made the connective “and” was evidently omitted, giving a very erroneous meaning to the sentence. Yet the omission is so apparent that an intelligent jury might be presumed to have supplied it, and we are reluctant to predicate a reversal upon an error that appears to be a palpable clerical mistake. This instruction, however, authorized the jury to find for the defendant upon a defense not pleaded in the answer, viz., “by holding them [the cattle] an unreasonable time before selling them upon the market, after taking possession.” On this subject the court further instructed the jury as follows:
“I instruct you that under the terms of the chattel mortgage it was plaintiff’s duty, when he took possession of the property described therein, to proceed to sell the same within a reasonable time after taking possession thereof, either at public or private sale at the place where said cattle were situated, or to ship the same to Kansas City, Kan., or to Kansas City, Mo., and sell the same upon the market; and if you believe from the evidence that the plaintiff failed to do that, and kept said cattle or a large portion thereof for several months after taking possession of the same, then in that event the plaintiff would be chargeable with the market value of said cattle described in the mortgage at the time that it took possession of the same; and if you believe also from a preponderance of the evidence that at the time plaintiff took said cattle they were of sufficient market value to satisfy plaintiff’s note and mortgage, then you will find for the deifen'dant.”
There was no allegation in the answer that the cattle were held an unreasonable time, no allegation of fraud or bad faith in holding them,, and no allegation that the mortgagor or the defendant even demanded an earlier sale. From all that appears in the pleadings or the evidence the plaintiff might have held the cattle and put them on pasture at the request of both the mortgagor and the defendant. Yet the court by this instruction makes this the basis of a verdict in favor of the defendant, provided only that the jury *404find the cattle were of sufficient value when taken to pay the debt. By the express provision of section 4253 of the General Statutes of 1901 the mortgagor could, at any time after the plaintiff took possession of the cattle, have demanded the sale of them, and could thereby have imposed the risk of holding them upon the plaintiff. If the defendant desired an earlier sale he could have paid the debt and been subrogated to all the rights of the plaintiff under the mortgage, including the possession of the cattle.
The court erred in its instruction regarding the consideration for the guaranty, and in refusing instructions relating thereto. As this question is not likely to recur under the same evidence it would perhaps be fruitless to extend the discussion on this point. Suffice it to say that the true rule can be deduced from Briggs v. Latham, 36 Kan. 205, 209, 13 Pac. 129, and Winans v. Manufacturing Co., 48 Kan. 777, 781, 30 Pac. 163.
The judgment of the district court is reversed and the cause is remanded.
All the Justices concurring.