PECK v. SNYDER.

the contract be one of sale or bailment.

It is little

short of absurdity, it seems to me, to hold a contract to be one of sale when it is evident that neither of the parties intended it as such, and there is no illegality in the contract. As no offer was made in the present case to satisfy the receipts by the delivery of wheat of the same quantity and quality, I concur with my brother Campbell, and in his reasoning, with the single exception above alluded to, and am entirely satisfied that the contract in the present case is one of bailment and not of sale, whether the custom was or was not admissible upon the point indicated.

MARTIN Ch. J. concurred in the result.

Ariel E. Peck v. Garrett Snyder.

Special Verdict. A jury may find a special verdict, but the Court cannot direct or compel them to do so, nor to give reasons for a general finding. Case made after verdict of jury and judgment. - On a case made after verdict of a jury and judgment thereon, this Court cannot review the facts, but only the rulings and decision of the Circuit Court.

When question to witness becomes immaterial.

When, on a trial by jury, a witness is asked a question which is objected to, and the objection is overruled by the Court, and exception taken, and the witness answers, "I can't say," the answer renders the question immaterial, and error will not lie for such ruling.

Heard April 23. Decided October 27.

Case made after judgment from Cass Circuit.

This was an action of assumpsit brought to recover damages for not building a house and barn according to contract, and was tried by jury. On the trial, a witness for the plaintiff was asked, "What is the difference between the value of the house as it now is, and as it would have been had it been built according to

PECK V. SNYDER.

contract?" The question was objected to as incompetent. The Court overruled the objection, and the defendant excepted. The witness answered, "I can't say."

After the charge to the jury had been given by the Court, the defendant's counsel asked the Court to direct the jury to find specially, and return such finding with their verdict upon these two questions:

"1st. Whether or not, when said plaintiff paid to said defendant, on the 11th day of October, A. D. 1861, the final balance due upon the contract, and took possession of the premises, he, said plaintiff, had not full knowledge that said house and barn were not constructed according to the contract between them, and had the means of knowing the breaches of contract for which damages are claimed."

"2d. Whether or not said defendant was guilty of any fraud by concealing the facts respecting said buildings from said defendant."

The Court refused so to direct the jury: to which ruling of the Court the counsel for the defendant excepted.

C. I. Walker and James Sullivan, for plaintiff':

This case was made after trial by jury and verdict, and only the questions raised at the trial can be raised here.2 Com. Lars, $3421; Rule 80; Sweetzer v. Mead, 5 Mich., 109; Van Kleek v. Eggleston, 7 Mich., 511; Trudo v. Anderson, 10 Idem, 365.

The jury cannot be required to give a special verdict, although they may give one.-2 Com. Laws, §4399; 1 Burrill's Practice, 242; Tidd's Practice, 897.

Harper's answer to the question put to him did the defendant no injury, and judgment will not be reversed. answer that does no injury to the party comRedpath v. Nottingham, 3 Blackf., 267.

for an

plaining.

D. Blackman, for defendant.

MARTIN Ch. J.:

CRIPPEN v. MORRISON.

I see no error in the rulings of the Circuit Judge in this case; and as the case was

shall direct our

longed neither to

tried by jury, it is to the rulings and decision of the Court alone that we attention. The finding of facts bethe Circuit Judge nor to this Court. I can see but one exception taken below, to which our attention can be directed, and that is, to the refusal of the Judge to direct the jury to find specially, upon certain questions, in case they found a general verdict. This is a novel request. A jury may find a general or a special verdict, according to the exigencies of the case; but a Judge cannot direct or compel them to do either, and more particularly, not to give reasons for a general finding. Harper's answer renders the question put to him immaterial, and there was no error, therefore, in the ruling of the Court allowing the question. The judgment is affirmed.

The other Justices concurred.

Philo H. Crippen v. John H. Morrison and Others.

Who entitled to fixtures, as between a mortgagee thereof and a prior mortgagee of the land.- H. mortgaged his land to secure the payment of money borrowed, upon his verbal agreement to erect a steam saw mill on the premises. Subsequently the plaintiff's constructed and set up in said mill a steam engine and appurtenances; it being agreed, at the time they were contracted for, that H. should secure the purchase money by a mortgage upon them, and also by a mortgage upon said land, and that until said mortgages were executed, the engine, etc., should remain the property of the plaintiffs. II. executed the mortgages, pursuant to said agreement, and they were duly filed and recorded, and kept alive until this suit was commenced. The first mortgagee brought his bill for foreclosure, making the plaintiffs parties thereto, and the usual decree was made, and the land sold under it to the defendant in this suit, to whom, previous to such sale, all the interest of said first mortgagee had been sold, with notice that it did not embrace

CRIPPEN v. MORRISON.

the machinery; - Held, That the plaintiffs were entitled to recover the value of said engine, etc., of the defendant, who, upon demand made, had refused to deliver them up;

Held, also, That the machinery not having been put up when the original mortgage upon the land was given, and the defendant having notice at the time of the assignment to him, that the machinery was not embraced in it, he was not, as against the plaintiffs, a bona fide purchaser.

Whether, if defendant had been 2 bona fide purchaser, it would have been otherwise : Quere.

Rights of mortgagor before foreclosure. · A mortgagor, since the statute-2 Comp. L., §4614-forbidding possessory actions against him until actual foreclosure, is in possession by right, and not by sufferance, and may make such arrangements for the use of the property as any other person could during his term.

Decree in ordinary foreclosure suits. How it affects fixtures. The plaintiffs having a mortgage on the real estate were, on that ground, proper parties to the foreclosure suit, and it not appearing that the bill in that case was filed for any other purpose than a simple foreclosure, nor that the decree differed from the usual form in such cases;- Held, That said decree was not a bar to plaintiff claim to said fixtures.

Heard April 7 and 8. Decided October 27.

Error to Branch Circuit.

Trover for steam engine, etc.

The case was tried by the Court, who found the facts, and rendered judgment upon the finding for the plaintiffs.

The facts are sufficiently stated in the opinion of the Court.

Newberry & Pond, for plaintiffs in error:

I. The nature of the property in controversy, the circumstances under, and the manner in which the same was attached to the freehold, are such as to constitute it, as between vendor and vendee, and hence between mortgagor and mortgagee of the freehold, a fixture within the overwhelming weight of authorities.-2 Smith's leading cases, (edition 1852,) 214, 15, 221; Walmsley, et al., v. Milne, 8 Law Reg., 373; Winslow v. Merchants' Ins. Co., 4 Met., 306; Powell v. the M. & B. Manf'g Co., 3 Mason, 459; Roberts v. the Dauphin, Dep. Bank, 19 Penn., 71; Farran v. Stackpole, 6 Greenleaf, 154; Sparks, et al., v.

CRIPPEN v. MORRISON.

State Bank, 7 Blk'f, 469; Walker v. Sherman, 20 Wend., 644; Morgan v. Arthurs, et al., 2 Watts., 140; Oves v. Ogelsby, 7 Watts., 106; House v. House, 10 Paige, 158; Harkness v. Sears, et al., 26 Ala., 493; Allison v. McCune, 15 Ohio, 729; Rice v. Adams, 4 Har., 332; Hill v. Wentworth, 28 Vt., 428.

And as between mortgagor and mortgagee, although attached to the freehold, subsequently to the execution of the mortgage.-2 Smith's leading cases, (edition 1855,) 254; Winslow v. Merchants' Ins. Co., 4 Met., 306; Walms ley v. Milne, & Law Reg., 373; also, other cases above cited.

II. The agreement between Hall, the owner of the equity of redemption of the freehold, and defendants in error, under which said engine was attached to the freehold, did not and could not operate to prevent or save the same from becoming a fixture, and fixture, and part of the freehold, as to the said prior mortgage and those claiming under it.

I. Upon Principle. - For nothing is more self-evident than that no man can grant to another that (either property or right,) which he does not himself possess.

II. Upon Authority.—1. Authorities directly in point: Frankland, et al., v. Moulton, 5 Wis., 16; Richardson v. Copeland, 6 Gray, 536; Preston v. Briggs, 16 Vt., 124.

2. Authorities in point by analogy: a. Holding that if one having a lien upon a chattel (such as a steam engine,) permits it to be attached to a freehold which is subject to a mortgage, he loses his lien as against such mortgage. -Jones v. Hancock, 1 Md. Ch. Dec., 187; McKim v. Mason, et al., 3 Md. Ch. Dec. 186; Denmead v. Bank of Baltimore, 9 Md., 179; Lyle v. Ducomb, 5 Binney, 585; Dutro v. Wilson, 24 Ohio, 101. b. Holding that a mortgagee of the freehold, upon entering into possession under a foreclosure of his mortgage, is entitled to the growing crops.-1 Hilliard on Mortgages, 161, note c;

13 MICH.-C.