
    Simis v. Hodge et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    1. Chattel Mortgages—Validity—Possession oe Mortgagor—Sale.
    A provision in a mortgage that the mortgagor is to remain in possession until default, does not constitute him the agent of the mortgagee so as to render the mortgage void on the sale of any of the goods, or require the goods sold to be credited on the debt.,
    2. Same—Evidence—Res Gestib.
    Evidence that, after the mortgage was made, the mortgagor instructed his clerks not to sell any of the goods, and that they did not sell any of them, is admissible as part of the res gestee.
    
    Appeal from circuit court, Kings county.
    Action by Adolph Simis, Jr., against Dwight M. Hodge and others, for the wrongful levy of an attachment on goods mortgaged to plaintiff and the sale of the goods under the attachment. Defendants appeal from a judgment bn a verdict for plaintiff, and from an order overruling a motion for a new trial.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      C. G. Macy, for appellants. G. G. Reynolds, for respondent.
   Barnard, P. J.

The Homeopathic Manufacturing Company gave a chattel mortgage to the plaintiff, a bona fide creditor. The defendants, by virtue of an attachment, subsequently issued an execution thereon, and seized the goods mortgaged, and sold them to pay the judgment in the attachment action. The seizure under the attachment was subsequent to the filing of the mortgage in the proper clerk’s office. The mortgage contained a clause that the mortgagor was “to remain and continue in the quiet and peaceable possession of the said goods and chattels, and in the full and free enjoyment of the same, ” “until default be made in the payment of the said sum of money, ” being the mortgaged debt. The judge charged the jury that a sale of goods mortgaged without the agreement of the mortgagee did not render the mortgage void. The defendants, therefore, requested the court to charge that by leaving the mortgaged property in the possession of the mortgagors the mortgagee madé them his agents, and, if any goods were sold, it makes the mortgage void, ■and at least the goods sold should be credited on the mortgage debt. 2ieither •of these requests are well founded in law. The old controversy, whether a mortgage was absolutely or only primarily void by reason of the possession of the mortgaged property being left with the mortgagors, has long been settled. Hastings v. Parke, 22 Alb. Law J. 115. It is a question of fact for the jury. The language of the mortgage given above does not directly or indirectly permit a sale by the mortgagor, nor even inferentially permit. Frost v. Warren, 42 N. Y. 204. After default, the mortgage provides for a sale of “said goods, ” and “until default” that the mortgagors shall remain in the full possession and enjoyment of “the same.” No abatement of the mortgaged property is hinted at; no dimunition anticipated. The entire goods are to •continue until needed to perform a broken condition, if one is reached by nonpayment.

The exception as to the proof given by Mrs. Oson is not well founded. She was the wife of the president of the homeopathic company, the mortgagors. She was directed not to sell the goods after the mortgage, and she states that they were all unsold. There is another similar exception as to an■otber witness. A mortgagor certainly can prove that none of the goods mortgaged were sold, and that he gave his clerk and employes directions to that effect, followed by proof that they did not sell any of it after receiving instructions that it was mortgaged and must not be sold. A mortgage could not be proved in this way, but the mortgage is admitted. The clerk’s action in respect to it may be explained by this instruction. In such cases the direction is part of the res gestee, and not res inter alios aeta.

There is therefore no error which calls for the reversal of the judgment, and it should therefore be affirmed, with costs.  