
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan’y. Term, 1901.)
    Before Swing, Giffen and Jelke.
    THE CHICAGO COTTAGE ORGAN COMPANY v. BERTIE A. BIGGS, et al.
    
      Trial on nezv matter in cross-petition — Opening and Closing—
    (1.) Where in an action to foreclose a chattel mortgage the answer admits the averments of the petition, but bv way of cross-petition sets up new matter as a defense, which constitutes the only issue on which the case goes to trial, the defendant is entitled to the opening and closing.
    
      Sale with mortgage back — What not conditional sale — Sec. 4155,7?. S.
    (2.) Where in an action to foreclose a chattel mortgage executed to secure the balance of the purchase price of a piano payable in installments, it appears that the entire contract is expressed in the mortgage; that neither in the mortgage nor in the averments of the cross-petition it appears that the sale was conditional or that the title to the piano was to remain in the vendor until the purchase price, or any part thereof, was paid, such transaction can not be considered a conditional sale within the meaning of sec. 4155-2, R. S.
    
      Same — Sale and. mortgage at same time—
    (3.) The fact that the sale and the giving of the chatel mortgage were one transaction occurring at the same time, will not tend to show that the sale was conditional.
    
      Bill of Exceptions — Incorrectness—Motion to strike from files—
    (4.) Where a bill of exceptions was lost while in the hands of op- ' posing counsel to whom it had been submitted in due time, as the statute requires, and thereupon a bill of exceptions prepared by such opposing counsel was submitted as the true bill of exceptions and the court so found, and signed the same, a motion in the reviewing court, to strike such bill of exceptions from the 'files because not correct, will be overruled where the affidavits filed in support of such motion are not accompanied with a copy of the bill of exceptions as claimed to be correct.
    Error to the Court of Common Pleas of Hamilton county.
    The petition alleged the sale of a piano by the Plocket Bros. Puntenney Company (to whose rights the plaintiff had succeeded) to the defendant for $400, of which a little over $50 was paid in cash and in an organ on the day of sale, and the balance agreed to be paid in installments for which notes were given secured by chattel mortgage on the piano sold. The defendant filed an answer and cross-petition which did not deny the sale and the giving of the mortgage, but alleged that'they were simultaneous acts; that the defendant had' paid some $206, on account of the purchase price; that the plaintiff had retaken possession of The piano without paying or tendering back any part of said sum, and prayed for judgment in the sum of fifty per cent, of, the amount so paid by her. The defendant nowhere alleged that the sale was conditional, or that there was any agreement that the title should remain in the .vendor until the purchase price or any part thereof was paid.
    The cause was tried before a jury. The court ruled that the defendant had the opening and closing on the issue-raised by her answer, and cross-petition as to whether she was entitled to a return of 50 per cent of the amount she had paid on account of the purchase of the piano which was the-only issue on the trial.
    The defendant testified that there was no agreement between herself and the Hocket Bros. Puntenney Company or the-plaintiff other than expressed in the mortgage which was introduced in evidence. The mortgage recited an indebtedness from the defendant to the Hocket Bros.-Puntenney Company, evidenced by the notes given for the installments. The condition of the mortgage was as follows:
    “Now, therefore, in consideration of such indebtedness and to secure the payment of the same as aforesaid, said party of the first part does hereby sell, assign, transfer, and set over to said party of the second part, the propertjr described in the following schedule, viz: 5 Wal. Briggs Piano, No. 17559, with stool and cover,
    “Provided, however, that if said debt and interest be paid as above specified, then this sale and transfer shall be void.
    ‘ ‘ The property sold is to remain in the possession of the party ■of the first part until default in the payment of the debt and interest aforesaid, or some paid thereof, in which case all of the said debt shall then become due and payable at the option of the said party of the second part; or in case of a sale or attempt to sell, or a disposal or attempt to dispose of, or a removal or attempt to remove the same from where it now is, then the said second party may take such property into its own possession, and sell the same either at private or public sale, as it may elect, and after satisfying the aforesaid debt and interest thereon, and paying all costs, expenses and charges on the same out of the proceeds of such sale, then the surplus, if any, shall be returned to said party of the first part.”
    At the close of the defendant’s testimony, in opening, the plaintiff moved the court to instruct the jury to return a ver■dict for the plaintiff which motion the court overruled and the plaintiff excepted. The .jury returned a verdict for the •defendant for the amount claimed in her cross-petition.
    A motion for a new trial was filed and overruled. The trial court signed and allowed a bill of exceptions purporting to contain all the evidence introduced. It being claimed that the bill allowed had not been presented within the time required by law to opposing counsel, the trial court found! that a bill of exceptions complete in form purporting to contain all the evidence and with the exhibits attached was presented to opposing counsel in time. The other facts are recited in the opinion.
   GiEEEn, J.

In the case of The Chicago Cottage Organ Company v. Bertie A. Biggs and others, first to be considered is a motion to strike the bill of exceptions from the files. The courf passed upon this in the fall of 1899, anc* counsel have requested that ft again be considered.

The difficulty arose from a dispute between counsel as to what the bill should be. The bill was prepared and presented to opposing counsel in due time. That bill was lost, and then a copy was substituted, and counsel to whom the bill was submitted prepared a bill himself, and that it was afterwards agreed should be the bill of exceptions, and it was so signed and so found by the court.

Now there are affidavits on file contradicting this statement, or rather, as against the finding of the court, but there is no bill of exceptions embodying the evidence in these affidavits, so this court can do nothing but approve the finding of the court below.

The court below found that the bill was presented in due time and that the bill of exceptions if it was substituted was substituted as a copy and suggested by counsel for Mrs. Biggs-. That is the very purpose of submitting a bill of exceptions to opposing counsel, in order that a correction may be made if necessary, and according to the finding of the court below it was made in this case. We have no evidence before us to change that finding. We therefore adhere to the former ruling of the court on the motion to strike the bill of exceptions from he files.

The judgment below was against the organ company, and they prosecute error, and assign error of the court in over- . ruling the motion upon the termination of defendant's testimony to render a judgment in favor of the plaintiff.

The defendant has filed a cross-petition, and the court below had held that the defendant had the opening and close; and at the close of the testimony offered by defendant in support of that cross-petition, this motion was made. The motion was overruled, and it is claimed that that was error.

The allegations of the petition are that the organ had been sold and a mortgage given back to the organ company. The answer of Mrs. Biggs does not deny this, but admits that there was a mortgage given, and her testimony sustains that allegation.

She avers in her cross-petition that it was one transaction, all done at one and the same time. . So far as we are able to discover that is the only allegationtending to show that it ■was not a mortgage, but a conditional sale.

In our judgment it does not even tend to establish that fact. Most mortgages are given at the time of the transaction; .in. fact, all mortgages for purchase money are given at the time of the transaction in order that the party making the sale may be secured as the mortgage is given for that purpose.

Stephens & Lincoln, for Plaintiff in Error.

Walter M. Locke, for Defendant in Error.

Counsel rely upon the case of Singer Mfg. Co. v. Caldwell, 7 O. C. C., in which the court held that a paper signed, similar to this one, was a conditional sale although perhaps it was. denominated a mortgage. But in that case the petition distinctly avers that the title was to remain in the vendor. Now there is a total absence in this petition of any averment of that kind.

It was argued to us orally that it was a makeshift, á device-to take what purported on its face to be a mortgage when in fact it was a conditional sale.

It is in many respects in the ordinary form of a chattel mortgage and states that the transfer shall be void in the event' that the payments are not made.

We think that the case of the Singer Mfg. Co. v. Caldwell, cannot be applied to this case because there the pleadings distinctly say, and the issue was raised as to whether or not it was a conditional sale, whether or not the title remained in the vendor after the sale; and that is the provision of the statute, section 4155-2, that a conditional sale where the title remains-in the vendor shall require before the property be taken from the vendee certain payments to be made by the vendor, and that it in no sense prevents the taking of a chattel mortgage.

So that not only with reference to the weight of the testimony, but in this case there is a total absence of any averment that would bring it within the provisions of this statute concerning conditional sales, and therefore the judgment below must be reversed.  