[No. 9029.

Department One.

December 12, 1910.]

#### William A. Sexsmith, *Respondent,*v. Geo. A. Brown *et al., Appellants.**1*

Appeal — Review—Law op Case — Instructions. Instructions, not excepted to, become the law of the case.

Appeal — Review—Verdicts. Findings of a jury, supported by competent evidence, are conclusive on appeal.

New Trial — Affidavits' op Jurors — Impeaching Verdict. Affidavits of jurors in support of a motion for a new trial cannot be received to affect matters that manifestly inhere in the verdict.

Appeal from a judgment of the superior court for Douglas •county, Steiner, J., entered December 18, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a promissory note.

Affirmed.

*Canton*<§• *Hensel,*for appellants.

*W. A. Reneau,*for respondent.

1

Reported in 112 Pac. 337.

Rudkin, C. J.

This action was instituted by the plaintiff to recover from the defendants the sum of $373.50, according to the terms and conditions of a certain promissory note, executed by the latter in favor of the former on the 28th day of July, 1902. The sole issue in the case was presented by a plea of payment. The case was tried before a jury, and from a judgment in favor of the plaintiff, according to the prayer of his complaint, this appeal is prosecuted.

The promissory note in suit was secured by a chattel mortgage on certain horses and other personal property belonging to the appellants, who offered testimony tending to show that, on or about the 1st day of September, 1903, they sold and delivered to the respondent four head of these horses and a set of double harness, in full payment and satisfaction of the note and mortgage. The respondent, on the other *165hand, offered testimony tending the show that the horses and harness were turned over to him as mortgagee, with authority to sell and dispose of the same and apply the proceeds of the sale on the note and' mortgage; that the horses were taken from his possession by the sheriff of Douglas county, under and by virtue of writ of attachment issued against the property of the appellants, and were thereafter sold by the sheriff to satisfy a judgment against the appellants in the attachment suit. On the issues thus presented, the court instructed the jury as follows:

> “This narrows this controversy between these two parties down to a single question: — Did Sexsmith accept and receive the horses and harness in question in satisfaction and full payment of his said note and mortgage against Brown ?

> “If you find from a fair preponderance of the evidence that Sexsmith and Brown mutually agreed that Sexsmith should take the four horses and the harness in question as and for his own property, and in consideration thereof release Brown from any further obligation on said note and mortgage — and that in pui’suance of such an agreement Brown delivered the horses and harness to Sexsmith for the purpose of extinguishing the debt evidenced by the note, and that Sexsmith accepted the property for the same purpose, then I instruct you that the note and mortgage would be fully paid and satisfied, and your verdict should be for the defendant, Brown. In such case the title to the horses and harness would pass to Sex-smith — they would become his property solely and exclusively —and if the horses were aftex’wards taken from him, rightfully or wrongfully, the loss would be his, and not Brown’s.

> “On the other hand, if Sexsmith did not take the horses in satisfaction of the note against Bx’own, but took possession of them merely as mortgagee for the purpose of selling them, only, and applying the proceeds on the note, and they were afterwards taken from him and lost to him, without any fault of his own, then, I instruct you, there would be no payment of the note in question, and your verdict should be for the plaintiff, Sexsmith.

> “If, as claimed by Sexsmith, he took possession of the horses as mortgagee only, and they were afterwards taken from him by the sheriff under a writ of attachment based on a suit then pending against Brown, by a third party, then I *166instruct you that Sexsmith would have been entitled to recover the property from the sheriff by appropriate action in this court, and thereafter sell the horses under his mortgage lien, had he chosen to do so, but he would have been under no obligation to prosecute such an action by reason of any duty resting upon him as mortgagee. He would have had the right, if he saw fit to do so, to waive his mortgage and the lien created thereby, and rely solely and exclusively on his note.”

These instructions were not excepted to and have become the law of the case, so that we are not called upon to determine whether any other or higher duty devolved upon the respondent as a mortgagee in possession than that imposed by the court below. Under these instructions the jury found that the horses and harness were not turned over or delivered to the respondent in payment or satisfaction of the debt, and their findings are supported by competent testimony. This, under the charge of the court, was the only issue in the case.

The matters set forth in the affidavits of jurors, filed in support of the motion for a new trial, so manifestly inhere in the verdict that the assignment of error based on the order denying the new trial requires no special consideration. Finding no error in the record, the judgment is affirmed.

Fullerton, Gose, Mount, and Parker, JJ., concur.