
    Richard Lathers, App’lt, v. Jacob H. Hunt, Resp’t.
    
      (New York Common Pleas, General Term
    
    
      Filed July 18, 1890.)
    
    1. Chattel mortgage — Possession by mortgagee does not satisfy debt.
    A. mortgagee does not convert the mortgaged premises to Ms nse when he takes possession and cares for it on its abandonment by the mortgagor, and his act in so doing does not satisfy the debt or amount to an appropriation of the property toward that purpose.
    3. Same — Evidence.
    In an action for rent where defendant alleges a conversion of furniture mortgaged therefor as an,offset or counterclaim, it is error to refuse to permit the plaintiff to show that he never converted or appropriated the property, or used or allowed others to use it, and had never reaped any advantage from it.
    3. Same.
    In such action it is error to exclude evidence of the value of the furniture, as plaintiff would only be chargeable with its value, uMess he took it in full satisfaction.
    4. Evidence — Letters of agent.
    Letters of an agent are admissible as part of the res gestae, where the agency is proved by other evidence.
    Appeal from a judgment for defendant for costs, rendered in the district court of the city of New York for the eleventh judicial district.
    
      J. Wamsley, for app’lt; L. B. Bunnell, for resp’t.
   Bookstaver, J.

The action was brought by the plaintiff to recover the sum of $150 due from the defendant for the rent of a certain flat in East Ninety-third street. The answer practically admitted the rent due, but set up that the defendant, in order to secure its payment, executed to plaintiff a chattel mortgage on certain furniture and carpets then in the flat in question, .that the plaintiff afterwards took possession of the same and used it, and had derived great benefit from such use, while, the defendant had suffered damage by reason thereof, and sought to offset or counterclaim the damage against the rent. It also set up as a separate defense that the plaintiff had exercised his right to foreclose the chattel mortgage by assuming and exercising the right of ownership since about the month of October, 1887, and had thereby discharged the defendant from all obligation for the rent in question.

Appellant contends that certain letters written by Richard Lathers, Jr., were improperly admitted in evidence under the well settled rule that the declaration of a man cannot be given in evidence to prove that he is the agent of another; but while they were not competent for that purpose, we think they were properly admitted as a part of the res gestee, all of them having been written in relation to the matters in controversy, and his agency having been sufficiently proved by other evidence; he, and he alone let the flat to the defendant, he collected the rent and gave receipts therefor, when the rent fell in arrear he required security, rejected certain stocks, offered and selected the furniture, etc., to-be included in the chattel mortgage, had that drawn up in his own name, although there was no other debt than for rent due either the plaintiff or the younger Lathers, and the latter must be held to have acted for the plaintiff in that matter. So, too, when the defendant was about to give up the flat, he was consulted about letting Mrs. Bryan, an inmate of defendant’s family, have-the same for the remainder of defendant’s term, and afterwards let. the same to her for a new term.

But when this case was before this court on a former appeal, 30 N. Y. State Rep., 432, we held that there was no conversion of the mortgaged property when the defendant moved out of the flat leaving it in possession of Mrs. Bryan, to whom he gave the express permission to use it while she occupied the premises in his. place, or afterwards when the plaintiff let the flat to her for a new term; and on the present trial that view is confirmed by the oral testimony given on plaintiff’s behalf and the lease introduced in evidence,-which clearly shows it was of the flat alone, and that the property in question simply remained as defendant had left it. After Mrs. Bryan left the flat, in July, 1888, and abandoned the property, the plaintiff took possession of the flat and put the property in other and unoccupied apartments in the sameoran adjoining-house, and sent the carpets to be cleaned. He had a right, and it-was his duty, to -care for the property so abandoned, and his taking-such possession under the circumstances did not satisfy the debt or amount to an appropriation of the property toward that purpose, as pointed out in the opinions delivered on the former appeal, and if we were warranted in reversing the judgment then for these reasons, defendant’s case is certainly no stronger on. this appeal and the judgment must be reversed again.

Under the opinions then delivered by the court, and the issues, raised by the pleadings, it was essential that the defendant show a conversion of the mortgaged property on the part of the plaintiff" or an appropriation of it to the full or partial payment of his. claim. It was just as material and important for the plaintiff to-present any evidence which would tend to disprove either of these-facts, yet when he undertook to show that he had never converted or appropriated it, that he had never used it himself or allowed others to use it, that lie had never let it together or with other-furniture, and had never reaped any advantage from its possession, the court below, on defendant’s objection, refused to permit him to do so, although we think such testimony went to the very gist, of the defense interposed, and it was error to exclude it. It is in vain that the respondent seeks to have us draw inferences from isolated facts after excluding such evidence.

"W"e also held on the former appeal, that if there had been a conversion or an appropriation of the property, that would have entitled the respondents to a credit upon the debt to the extent of the value of the property so converted; yet on this trial the court below excluded all testimony of such value either at the time the mortgage was given or at any subsequent time. This we think was clearly error, for plaintiff is only chargeable with the value of the property at the time of the appropriation, unless indeed he took it in full satisfaction of his debt, of which there is no proof in the return in this case.

The judgment should therefore be reversed and a new trial ordered, with costs of this appeal to the appellant to abide the event

Allen, J., concurs.  