Irwin v. McDowell

SEARLS, C. The defendant had judgment in the above-entitled cause, from which, and an order denying a motion .for a new trial, plaintiff appeals. The case was here on a former appeal from a judgment in favor of plaintiff for a nominal sum, from which he appealed, whereupon the judgment was reversed and a new trial ordered: 91 Cal. 119, 27 Pac. 601. The general history of the case is there stated, and will not be repeated here.

At the last trial, the defendant (respondent here), for the purpose of showing that the property upon which he levied as sheriff had been discharged from the lien of plaintiff’s chattel mortgage before such levy, introduced- in evidence a bill of sale of certain other personal property from Robert L. Gouts to plaintiff, executed and acknowledged by said plaintiff and said Gouts under date of August 11, 1890. There was no abuse of discretion on the part of the court below in permitting the defendant, at the trial, to amend his answer so as to aver “that the mortgage on the hay and grain levied on in said action of Gouts v. Gouts and hereinafter mentioned was released before the said levy was made.”

[331]The “bill of sale,” as it is termed, purported to be a conveyance by Robert L. Gouts to plaintiff of certain horses, cows, wagons, harness, etc., on condition that plaintiff was to take immediate possession of the property, and to sell them, or any of them, during thirty days, at a price to be approved by Gouts—the money to be received by plaintiff, and applied upon his demand against Gouts—and, at the end of thirty days, plaintiff was at liberty to sell, at his pleasure, until his demand was satisfied, whereupon the residue of the property was to be returned to Gouts. It then proceeds as follows: “This sale is made, and the property placed in the possession of said Irwin, as additional security for a certain debt secured by crop mortgage, and for goods had and merchandise had and received, by said Gouts from said Irwin. ’ ’ Two or three days after the foregoing bill of sale was executed, Cave J. Gouts, a brother of Robert L. Gouts, with the latter, met plaintiff, and desired him to make some alterations in the bill of sale, to which he at first objected, but finally consented, whereupon they all repaired to the attorney of plaintiff, who, at the request and by the consent of the parties, added to the bill of sale, immediately following the clause quoted above, as follows : “And a certain real estate mortgage executed on November the 23, 1889, is held as additional security to the property held under this bill of sale, which is given, in lieu of the chattel mortgage, as security for the note held thereunder.” The parties thereupon acknowledged the execution of the instrument before the attorney, who was a notary public, or, as some of the witnesses thought, it was acknowledged when signed. This, however, is not important, as the instrument related to personal property—not requiring to be acknowledged. The instrument, as first executed, clearly indicated its object to be to give other and further security for the debt due and owing from Robert L. Gouts to plaintiff, in addition to the chattel mortgage. As amended, it just as clearly indicates an intention that it shall take the place of the chattel mortgage. It refers to a certain other mortgage which plaintiff held upon the interest of Gouts in a ranch, as being held as additional security to the property held under this bill of sale, “which is given in lieu of the chattel mortgage.” “In lieu” signifies instead of, in place of. We must conclude, from the language used, that it was the intention of the parties that the