[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 206 There are only two questions in the case, arising on the charge of the judge, and his refusal to direct a verdict, although the counsel for the defendant raises the point that the judgment should be reversed, because the court charged: "If the jury should find that Michael intended a fraud by giving the mortgage, still the mortgage was a valid instrument, unless the plaintiff was himself a party to the fraudulent intent." In reference to this, it need only be said, that there is no exception to it; and, of course, the question is not properly before us, and judging from the opinion delivered in the court below, it was not presented there, but appears now for the first time.
The real questions are, whether the amount which was stated in the chattel mortgage, and which was greater than the actual liability of the plaintiff for the mortgagor, and for the security of which it was given, rendered it void per se. And so, also, whether the proof given on the trial showed that the mortgagee had given the mortgagor such permission to dispose of the mortgaged property, as rendered the mortgage void in law. For if so, in either respect, the charge was not only erroneous, but the court erred in not ordering a verdict for the defendant.
In regard to the amount stated in the mortgage, the language of it does not come fully up, in stating it as a security for future liabilities, to that in the case of Miller v. Lockwood, and yet it referred to the direct and collateral security which the mortgagee had assumed, and comes within the principle of that case, and, at most, was a badge of fraud, to be passed upon by the jury. *Page 208
As to the proof given upon the subject of the sales made by the mortgagor after the mortgage was executed, there was no such direct proof as rendered the question palpably plain, but it was to be decided upon all the facts and circumstances proved; and the inferences to be drawn from them were peculiarly for the jury. And in regard to that, I think the charge was as favorable to the defendant as the case called for.
The case shows that the goods in question were mainly obtained upon the credit of the plaintiff, and were manifestly less in amount than the direct responsibility which he had incurred. And the jury having passed upon all the questions of fact, and found no fraudulent intent, the judgment should be affirmed.