#### Moak and another vs. Bourne.

Where the owner of a saw-mill with the necessary articles and implements for running it, and also a lot of lumber and logs, mortgaged the lumber, logs and other personal property to secure certain debts, and after a default, leased his mill to the mortgagees upon an agreement that they were to run it, saw the logs and sell the lumber, and after paying expenses, pay the mortgage debts, and that the interests of the mortgagees, as fast as the debts were paid, should cease, and after they were all paid the property remaining should belong to the mortgagor; and while this agreement was in force, the mortgagees sold the property remaining, at public auction, but bid it off themselves, and then took another lease of the mill for which they were to pay nothing, *515but were to saw the logs and apply their proceeds upon the mortgage debts: *KM,*that after the debts were paid, the personal property remaining belonged to the mortgagor.

It is not error in such ease, in bolding the mortgagees to an aeccount, to allow the mortgagor to show the value of the lumber sold by them; though if they acted in good faith and with reasonable care, they are. accountable only for the amounts actually received from sales.

Where the question is as to the value of certain lumber, and there is a dispute about its quality, the parties may show the value of several qualities at different mills in the neighborhood, so that the jury may apply the evidence after determining the quality of the particular lumber.

Where, in an action to recover possession of various articles of personal property, it appears clearly that a part of the property belonged to the plaintiffs, though all the rest might belong to the defendant, and the verdict was for the defendant generally as to all the property, if the court refuses a motion for a new trial on the ground that the verdict was against evidence, the judgment will be reversed.

APPEAL from the Circuit Court for *Jefferson*County.

The case is stated in the opinion of the court. Judgment in the circuit court for the defendant, and motion for a new trial denied.

*Unos & Hall,*for appellants :

Upon default in payment of the debt secured by the chattel mortgage, the' legal title to the mortgaged property vested absolutely in the mortgagees. Neither the subsequent agreement nor their failure to comply with it, would revest the mortgagor with the title. 8 Johns., 96; 7 Cow., 290; 6 Shipley, 356; 12 Wend., 61; 2 Denio, 170; 1 Chand., 203. 2. The court erred in admitting testimony as to the general value of lumber, and as to the general cost of manufacturing lumber. 3. The verdict was against evidence, at least in regard to the yoke of cattle replevied.

*Gill, Barber & Fribert,*for respondent:

1. The evidence as to the value of lumber and cost of manufacturing it, was properly admitted for the purpose of showing that the plaintiffs were not faithfully discharging their duty as trustees for the defendant. 2. The legal title to the mortgaged property did not remain in the mortgagees after default, under the subsequent written agreements. These roust be considered in determining the rights of the parties. 1 Green! Ev., § 283; 6 Wis., 71. The sale by the mortgagees (as trustees) to themselves, did not change the *516iegai rigR-ts of the parties. Burrill on Assignments, 455 et seq.; 4 Kent, 475 ; 4 Abbott’s Pr. R, 112 ; Story on Bail-ments, 319. See also *Charter vs.*Stevens, 8 Denio, 88; "Willard’s Eq. Jur., 457-8; *Patchin vs.*Pierce, 12 Wend., 62; *Parles vs. Hall,*2 Pick., 211; *Leitch vs. Hollister,*4 Corns., 211.

April 10.

*&y the Court,*

Paine, J.

This -was an action to recover possession of personal property. Tlie facts material to an understanding of the question presented may be briefly stated as follows: *Bourne,*the defendant, was the owner of a saw mill, and personal property used in operating it, and also of a quantity of lumber and logs. He gave a chattel mortgage upon the personal property, among which was a yoke of oxen, to secure the payment of several notes and debts mentioned in the mortgage. After a default by the mortgagor, the parties made a further agreement, by which he leased his mill to those interested in the debts, and they were to run it, saw the logs, sell the lumber and apply the proceeds, first to expenses, and next to the payment of the debts in the order in which they were mentioned in the mortgage. This agreement, which was made in August, 1858, provided that if enough of the lumber should not be sold by the 1st of the following January, to pay the indebt'edness, it might then, on six days’ notice, be sold at public auction to the highest bidder,' and the proceeds applied to the expenses, and then to the debts. It also provided that the interest of each of the creditors should cease as soon as he was paid off, and that in case of a sale at public auction, the balance, after paying the indebtedness, should revert and belong to the mortgagor. Under this agreement the mortgagees took possession of the mill and personal property. While they were in possession, *Bourne*signed a paper giving them the right to sell at public auction at any time, without waiting till the first of January, 1859, and waiving the six days’ advertisement; the sale, however, to be for cash, or short approved paper. After running the mill awhile, the mortgagees caused such sale at auction to be made, but they bid off most of the property. After this a further lease of the mill was made by *Bourne*to them, upon an *517agreement that they were to pay nothing for the use of it, but were to nse it in sawing logs which had been bid off them, and that the proceeds should still be applied to the mortgage debts. With this understanding the mortgagees continued in possession, manufacturing and selling lumber, until the mortgagor, claiming that they had realized enough, over and above expenses, to pay off the mortgage debts, took possession of the property. And the plaintiffs, who had acquired the entire interest of the mortgagees, brought this action to recover the personal property.

The first question is, whether, supposing the mortgagees to have sold enough to pay themselves, over and above expenses, the mortgagor was entitled to the balance. We think he was. The counsel for the appellants relied upon those cases which hold that after default the interest of a chattel mortgagee becomes absolute. But we think that principle not strictly applicable here, for the reason that here is not only a chattel mortgage, but other agreements by the parties, upon which their rights materially depend. Taking all these written agreements in connection with the parol evidence upon the same point, we think they show an understanding that the mortgagees were to get their debts out of the property by using the mill for that purpose, and that their interest was then to cease, and the remainder to belong to the mortgagor. This is expressly provided for in the first lease, and the mortgagees testify that such was the understanding. The last lease, in speaking of the logs as having been bid off by the mortgagees, and being then owned by them, might serve to throw some doubt upon this point at that time, but we think the provisions of the lease itself show conclusively that the parties still had the same intention which had pervaded their entire agreements upon the subject. The mortgagees were to pay nothing for the mill, and were to apply the proceeds of the lumber sawed from these logs upon the mortgage debts. It is incredible that such an agreement could have been made, except upon a continuation of the idea that they were to get only their debts out of the property, and that the balance was to belong to the mortgagor. There was no other consideration *518for the lease of the mill. We think, therefore, the court be-properly held, tbat if they had paid themselves, the balance belonged to the mortgagor.

Nor do we think it was erroneous for the court to allow the mortgagor to show the value of the lumber disposed of by the mortgagees. It is true the ¡3oint of inquiry for the jury was, what amount they had realized from sales, over and above expenses. If they acted in good faith and with reasonable diligence in making the sales, that was all they were accountable for. Showing the value of what they had sold, would be a circumstance from which the jury might infer what they had received. If the mortgagees, by their testimony, could fix the amount more specifically, the jury, if satisfied that they acted in good faith, should charge them only with that amount. But evidence of the kind offered by the mortgagor was, perhaps, the only kind which, from the nature of the case, was accessible to him in the first instance, with the exception of calling the other parties, which though he might, still he was not bound to do.

Nor was it error to allow the mortgagor to show the value of the several grades of lumber at other mills in the vicinity of this, though a few miles distant. It is true such testimony did not apply directly to this lumber. But where an article is divided into several qualities and has established market prices, like lumber, if there is a dispute about the quality of the lumber in question, it would seem admissible to prove the market price of any of the qualities which the jury might find it to be, and leave them to apply the evidence accordingly. And it would be for the jury to say, from the evidence as to the quality and that as to the value of the various qualities there and in that vicinity, what was the value of that particular lumber.

The counsel for the appellants contends, that the verdict was against evidence, and that the court below erred in overruling the motion for a new trial. Without expressing any opinion upon the evidence generally, we think the verdict was against the evidence in one respect. It appears, beyond any question, that the yoke of cattle replevied did not belong to the mortgagor. He himself testified, that of the yoke *519originally mortgaged, one died, and be sold tbe other before tbe mortgagees took possession. It appears that tbe yoke was purchased by them while in possession, and that they never belonged to *Bourne.*Tbe verdict makes no distinction between them and tbe rest of tbe property, but delivers them with tbe rest to tbe mortgagor. This was probably because no point was made upon it at tbe trial, as it was doubtless overlooked in tbe beat of tbe controversy upon tbe more important points in tbe case. Still tbe objection that tbe verdict was against evidence is sufficient to enable tbe appellants to take advantage of it here. Tbe respondent’s counsel answers this objection by saying that the proof shows that *Bourne*bad really been charged with these cattle, under tbe bead of expenses, and if not, that it shows that they belong to *Moak*alone, and not to-tbe appellants jointly. But we think neither of these facts appears. J. J. Moak swears that be bought tbe cattle for tbe mill company, and that they were never charged to *Bourne.*It is true, be says be bought them with *W. T. MoaMs*money, and upon bis evidence tbe money should be regarded as advanced by *W. T. Moak*for tbe company.

Eor this reason, therefore, we think tbe judgment must be reversed, with costs, and a new trial awarded.