John Breuner Co. v. King

KERRIGAN, J.

This is an action to foreclose a chattel' mortgage given by defendant to plaintiff. The case was tried before an advisory jury, a decision was rendered in favor of plaintiff, and a decree of foreclosure was entered. From the judgment and from an order denying her motion for a new trial the defendant prosecutes this appeal.

Appellant urges that the court erred in not sustaining her demurrer to the complaint, on the ground that the complaint is uncertain in that it fails to sufficiently describe the property, either in the body of the complaint or in a copy of the-mortgage attached thereto as an exhibit and made a part thereof. We cannot agree with this contention. A description of the chattels mortgaged is contained both in the complaint and in the mortgage, and is in the following terms: “All the furniture, upholstery, carpets, draperies, chinaware- and other household goods of every kind, located and contained in and about that certain building, in said City and County of San Francisco, known as the ‘Haddon Hall Apartment House, ’ and also known as No. 951 Eddy street, said building being situated on the lot on the south side of Eddy street, 68 feet 9 inch front, 120 feet deep, and commencing.

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137% feet easterly from the southeast corner of Gough and Eddy streets.” This description shows where the property was located, and that it was all of a certain kind of property, and not that it was an indefinite part of it, which was in the building at the time the mortgage was executed. Under the authorities the description is ample—especially as this action is between the parties to the mortgage. (Jones on Chattel Mortgages, 5th ed., see. 53 et seq.; 6 Cyc., p. 1022 et seq.) . ' The rule as to the description of personal property in chattel mortgages is thus stated in Cyc.,

supra:

‘‘As against third persons the mortgage must point out the subject matter so that the third person may identify the property covered, by the aid of such inquiries as the instrument itself suggests. But between the parties it is only necessary to identify the chattels so that the mortgagee may say with a reasonable degree of certainty what property is subject to his lien.”

The court committed no error in refusing to permit appellant to testify as to the source of the payments which she made on account of the note. Appellant in her answer alleged that respondent had misrepresented to her that the business conducted at Hacfdon Hall, an apartment house, in which this property was installed, had been when filled conducted at a profit of $600 per month, which amount, she claims, would have been sufficient to enable her to discharge the obligation assumed by her. It had already appeared that the appellant had made three payments on account of the principal of her indebtedness. The object of the question was doubtless, as claimed, to show that the alleged representations were false, and that the business was conducted at a loss. But the witness had already testified directly to this effect, by showing the income and expenses of the business; and it is very questionable if this testimony would have been strengthened by showing the sources from which the witness obtained the money with which to make the payments in question. Indeed, it can hardly be said that there is any legitimate inference that a given business is unprofitable from the fact that funds are obtained elsewhere to meet notes given in payment of property used in such business.