#### McCord-Brady Company et al. v. John R. Moneyhan.

Filed January 24, 1900.

No. 9,128.

1. Contracts: Extrinsic Evidence: Question eor Jury'. Where extrinsic evidence regarding the effect intended to be given an equivocal instrument is contradictory, the question should be submitted to the jury.

2. -:-: Instructions: Review. An instruction to the effect that a waiver of provisions contained in a written instrument must be proved by evidence which is clear and unequivocal, is erroneous.

Error from the district court of Burt county. Tried below before Fawcett, J.

*Reversed.*

*McCabe, McGüton é Rack, Edward A. Peterson*and *H. H. Bowes,*for plaintiffs in error.

*M. R. Hopewell, contra.*

Sullivan, J.

On April 10, 1896, John R. Moneyhan executed to McCord-Brady Company a demand note for $194.31 and a chattel mortgage on his stock of merchandise in the village of Craig. Earl Stanfield, an agent of the mortgagee, took immediate possession of the mortgaged property, and, with Moneyhan’s consent, proceeded to sell the same in the usual course of trade. On April 13, 1896, Charles H. Miller, another agent of McCord-Brady Company, went to Craig, and, with the assistance of Moneyhan, made an invoice of the stock. A day or two *594after the invoice was completed Miller sold the property to H. H. Smith & Co. for $209. This action was then instituted by Moneyhan against McCord-Brady Company and H. H. Smith & Co., on the theory that the sale was unlawful and amounted to a conversion of plaintiff’s property. The principal question in dispute is whether the sale made by Miller was authorized; The oral testimony bearing'upon this point is conflicting; but defendants produced at the trial documentary evidence which they claim is conclusive in their favor. The writing upon which they rely is as follows:

> “Craig, Neb., April 13,1896.

> “This is to certify that according to the tenor of one certain mortgage given by me to McCord-Brady Company I grant and give unto Charles H. Miller, their agent, the full possession and right to sell the stock of goods described in said mortgage, the proceeds of said sales to apply to the discharge of their claim. Signed this 13th day of April, A. D. 1896. J. R. Moneyhan.”

We can not agree with counsel for the defendants that this document, standing alone, necessarily implies a waiver by Moneyhan of his right to have the goods sold according to the terms of the mortgage. The course pursued by the trial court was correct. The instrument was properly submitted to the jury to be read in the light of the circumstances surrounding the parties at the time of its execution. The extrinsic evidence being contradictory, the question could not have been properly determined by the court.

The court instructed the jury as follows: “You are further instructed that to justify the private sale of the stock of goods by McCord-Brady Company to H. H. Smith & Co., the waiver by Moneyhan of the conditions of sale expressed in the mortgage must be clear and unequivocal,- and must be established by a preponderance of the evidence.” The giving of this instruction was prejudicial error. The gist of the action being the alleged *595wrongful sale made by one of the defendants to the other, their liability depended entirely on whether Moneylian had waived his right to' the notice for which the mortgage provided. Conceding that the bnrden was on defendants to establish snch a waiver, we know of no rule requiring them to do more than produce the greater weight of the evidence upon the issue. The language employed by the court was calculated, we think, to impress the jury with, the idea that a bare preponderance in favor of defendants would not justify a finding in their favor. Since there is to be another trial, it ought, perhaps, to be further remarked that the court, in receiving expert evidence of the value of the goods, went to the utmost limit of its discretion, and, perhaps, farther than it should have gone. The judgment is reversed, and the cause remanded.

Reversed and remanded.