verdict has substantial support, and that there was no error in refusing to direct a verdict for appellant, or in denying the motion for a new trial, on the ground that the verdict was not sustained by the evidence.
This also practically disposes of the error assigned on the refusal to give an instruction asked by appellant. This instruction, without qualification or condition, stated that if the jury found that on said June 2nd, 1891, defendant told plaintiff that he would hold said property as security for his debt, and plaintiff made no objection thereto, but allowed defendant to take the property, this would be an assent upon the part of the plaintiff to such holding, and the verdict must be for defendant. Now, without holding that mere silence and inaction could be more than evidence of assent, in any case where the other party had not been induced thereby to alter his condition to his prejudice, it yet seems too plain for argument in this case that if appellant was claiming a legal right to hold the property, either under the purchase by David Jones or under the attachment in his own name, and respondent silently acquiesced in such claim of right, such fact would fall far short of constituting a contract of pledge between the parties. Moreover, the instruction disregards respondent's testimony that the property was taken without his knowledge or consent.
It is pressed against the charge of the court that it makes unduly and unnecessarily prominent the thought that a pledge is a contract, and that it takes two persons to make a contract, and that their minds must meeet on the same line. Both must understand the transaction in the same way, and it must be voluntarily entered into. We think the criticism not applicable. There was but one issue in the case, and that was upon the allegation in the answer that respondent pledged the property to appellant as security for the debt. Appellant must succeed, if at all, upon the theory of a pledge. Possession by other means would not help him. It was entirely proper for the court to specifically define a
N. D. R.—16.
