¶1The case seems to have been tried on the theory that defendants had the right to remove the property in question, and that the plaintiff’s right to recover rested on the fact that they had injured it through want of care in the removal. Whether they had so injured it at all was a litigated question, to be determined by the jury uspon the evidence. It was therefore erroneous for the court, to charge the jury that plaintiff was entitled to recover, at any rate,, nominal damages. Whether there was a cause of action depended on the fact of injury to the goods. But as the jury found actual damages, which included a finding of injury to the goods through defendants’ want of care, the error did not prejudice.
¶2The defendants were not in position to question the bona fides of the mortgage to the plaintiff. It is only a subsequent purchaser, or mortgagee, or a creditor who has laid hold of the mortgaged property by legal process, who on that ground can object that the mortgage is invalid. Ellingboe v. Brakken, 36 Minn. 156, (30 N. W. Rep. 659.)
¶3The admission of the list made by the witness Kirkland was error.. Its accuracy was properly verified, but it did not appear that the witness might not have testified from memory to the articles in the house. The substitution of memoranda for the recollection of witnesses is permitted only from necessity, and where the recollection, has failed. Stickney v. Bronson, 5 Minn. 172, (215;) Newell v. Houlton, 22 Minn. 19; Beebe v. Wilkinson, 30 Minn. 548, (16 N. W. Rep. 450.) But, upon carefully considering the case as it went to> the jury, we are satisfied the admission of the list could have had no> effect on their verdict. It enumerated only the articles, without, mentioning either value or condition. The witnesses who testified to injury to the articles did so without reference to the list, — without knowing of it, so far as the evidence shows. Whether the goods were injured by negligence of-the defendants, and, if so, to what extent, was. *405for the jury, although the evidence on those points is not very satisfactory.
¶4The point that the damages are excessive is not raised by the assignments of error. None of the .other assignments of error require particular notice.. None of them are well taken.
¶5Order affirmed.
¶6Note. A motion for a reargument of this case was denied December 8, 1891.