
    Adolph Simis, Jr., Resp’t, v. Dwight M. Hodge et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    1. Chattel mortgage—Possession oe mortgagor—When sale does not RENDER MORTGAGE VOID.
    Where a chattel mortgage contained a clause that the mortgagor was “to remain and continue in quiet and peaceable possession of the said goods and chattels and in the free use and enjoyment of the same * * * until default be made- in the payment of the said sum of money,” being the mortgage debt, Held, that the possession of the goods by the mortgagor did not constitute him an agent of the mortgagee so as to render the mortgage void should any of the goods be sold, nor if any were sold require that they should be credited on the mortgage debt.
    
      :2. Same—Admissibility oe evidence—Res gests.
    Evidence that a mortgagor gave his clerk and employees instructions that none of the goods mortgaged were to be sold, followed by proof that none were sold after receiving the instructions, is admissible as part of the
    Appeal from a judgment entered upon the verdict of a jury rendered at the Kings county circuit in favor of the plaintiff and from an order denying a motion for a new trial.
    This action was brought to recover damages for the wrongful conversion of property. The property was claimed by the plaintiff to have been mortgaged to him by the Homeopathic Manufacturing Company. The plaintiff was a bona fide creditor. After the giving of the mortgage, the defendant Dwight M. Hodge obtained a judgment against the company and issued an execution thereon, so the sheriff thereunder levied upon the goods covered by the mortgage and sold them.
    
      Foster L. Backus for app’lts- George G. Reynolds, for lesp’t.
   Barnard, P, J.

The Homoeopathic 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 peacable 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 mortgage 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 made- 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.

Neither 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. Parker, 22 Alb. L. 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. Nodimunition anticipated. The entire goods are to continue until needed to perform a broken condition, if one is reached by non-payment. The exception as to the proof given by Mrs. Oson, is not well founded. She was the wife of the president of the Homaeopathic 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 another witness. A mortgagor certainly can prove that none of the goods mortgaged were sold, and that he gave his clerk, and employees direction to-that effect, folio,wed 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 gesteé and notres inter alios acta.

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

Pratt, J., concurs.  