Wagner

Upon the close of plaintiff’s testimony the •court granted defendant’s motion for a nonsuit, and judgment was accordingly entered. Plaintiff' appeals from the judgment and order denying his motion for a new trial.

The evidence shows substantially the following facts: On July 22, 1903, Lucien Blum and Peter Yerdon executed to de fendant a chattel mortgage on the furniture, household goods and kitchen and dining-room wares, contained in a building known as 41 and 45 Stockton street, to secure the payment of a promissory note for $1,500 and interest to accrue thereon. On the same day the same mortgagors executed and delivered to plaintiff a second chattel mortgage on the same property to- secure a promissory note for $1,000, besides interest. Both mortgages were properly recorded. Afterward, the mortgagors being in default in the payment of interest, the defendant went to the plaintiff and asked him to assign his mortgage to defendant for convenience, so that defendant could foreclose both mortgages in the one action. It was finally agreed that the plaintiff should assign his mortgage to the defendant, and that the defendant should immediately commence foreclosure proceedings, and…