221 F. 145 | 8th Cir. | 1915
The plaintiff in error brought suit against Pritzlen to recover a money judgment. The case proceeded on two cases of action. The first was upon a note for $32,920.15, made on the oOlli of November, 1901, upon which a balance of $26,234.58 was claimed. The second cause was for money advanced for the keep and other expenses connected with a large number of cattle upon which Pritzlen had given a chattel mortgage, covering not only the indebtedness secured by tlie first count of complaint, but also the advances covered by the second count. The defendant answered, setting up a large number of defenses, and also setting up by way of counterclaim an action for damages arising out of the alleged failure of the plaintiff bank, upon a contract alleged to have been made by it, to furnish feed, by reason of which failure a large number of cattle of Fritzlen died during and following a severe storm in February, 1903.
Upon trial of the cause to a jury there was a verdict for the plaintiff upon both causes of action, and in favor of the defendant Fritzlen upon his counterclaim. Upon motion for new trial, the court allowed the verdict upon the second count of the complaint and upon the counterclaim each to stand, but granted a new trial as to the verdict upon the first count of the complaint. The plaintiff bank thereupon dismissed this cause of action without prejudice, the judgment was entered upon the rest of the case. This course of the matter relieves us from any consideration upon this writ of error of anything connected with the suit upon the note, and leaves simply for consideration, first, whether the record, so far as it relates to the bank’s second cause of action, is free from error, and, second, whether the proceedings by which Fritzlen was awarded damages upon his counterclaim are sustainable. This involves a consideration of the several defenses mutually made against these claims.
“This sale is a mortgage upon the following conditions: The first party shall pay to the second party, first, the indebtedness above described when the same becomes due, either as above set forth or according to the terms of any extension or renewal note or obligation; second, all sums loaned, advanced, or expended by the second party for the maintenance or transportation of said property, or for any purpose connected therewith; third, all indebtedness of any character created or maturing while any indebtedness of the character mentioned in the two foregoing paragraphs remains unpaid.”
It will be noted that this is not a mere recital of an indebtedness constituting a consideration for a mortgage, but is a specific obligation to pay these expenses incurred in the transportation and upkeep of the cattle. If it were the former, doubtless the general rule indicated in the authorities cited for Fritzlen would prevail that no cause of action in personam arose upon the instrument, but that the one remedy would be against the property. But here the parties specifically agreed that the mortgagor, Fritzlen, shall be responsible for these amounts. We deem it immaterial that the words are that the first party “shall pay.” This to all intents and purposes is the same as “agree to pay,” and if the latter words were used it could hardly be claimed there was no agreement. We think, therefore, that the effect of the transaction was not only a mortgaging of the property and a recognition of this expense as an element protected by the' mortgage, but that the wording of the mortgage is a specific obligation in writing to pay these sums. Being thus in writing, the Kansas statute gives five years to bring the action. There was thus no bar of the statute against it.
“The plaintiff says that all of - the items set forth in the second canse of action were the subject of litigation between plaintiff and defendant in said case of Welden against the defendant and plaintiff respecting said items and accounting, and said cause was pending in said district court of Clark county, Kan., in said case against Welden and this defendant and this plaintiff, from April, 1904, to April, 1907.”
There is a provision of the Kansas law upon this matter of limitations as follows:
- “If an action be commenced within due time and a judgment thereon for ■-the pláintiff be reversed-, or if the plaintiff fail in such action otherwise than*149 upon the merits, and the time limited -for the same shall have expired, the plaintiff, or if he dio and a cause of action survive, his representative may commence an action within one year after the reversal or failure.”
The present suit was brought within one year after the Welden Case had been reversed by- the Supreme Court of Kansas. The result of this last is to remove the claim from the running of the statute while pending in the state court of Kansas, so that with this period deducted there would, independent of the other question, not have been any bar resulting from the three-year limitation.
|"4, 5] There is also some point made that the exception embodied in the Kansas statute should have been-pleaded in the complaint and cannot properly be introduced into the case by way of reply. The practice, however, in Kansas, is otherwise. Kirk v. Andrew, 78 Kan. 612, 97 Pac. 797. And, this being the law of Kansas, the United States District Court therein is bound by it. R. S. § 914 (Comp. St. 1913, § 1537); Chemung Canal Bank v. Lowery, 93 U. S. 72, 76, 23 L. Ed. 806.
This disposes of all that is said against the judgment awarded to plaintiff upon the second cause of action.
We come, now, to the questions arising upon the award of $13,160 against plaintiff upon defendant’s counterclaim. The plaintiff, by repeated motions and objections, presented to the court below, raised the question of whether the facts proved afforded ground for recovery. There were also a number of questions raised upon the admissibility of evidence on the trial of this counterclaim, and a question is also made in the case against the court’s allowing the verdict on the counterclaim to be set off against that secured by plaintiff upon this second cause of action just dealt with. The defendant’s allegations upon his counterclaim are briefly outlined as follows: The bank, in taking the promissory note of November 30, 1901, had a mortgage upon all of defendant’s live stock, and also upon all of defendant’s real estate, leaving him, as the bank well knew, without resources to purchase feed for such stock. The mortgage, as we have above seen, gave the bank a lien upon the stock for “all sums * * * advanced
[6] The controlling question, of course, is whether, in view of what passed between Fritzlen and Smith, and in view of what Smith did thereafter, there was, first, a binding obligation upon the bank to furnish this feed; and, second, assuming such obligation to have existed, was it fulfilled by the bank ? Any obligation to furnish food did not arise from the terms of the chattel mortgage. An examination of this shows no agreement by the bank to provide feed for the stock. True, it gives the bank the right to advance money for transportation of the cattle, and for its maintenance, and allows the bank a lien upon the cattle for any sum so advanced. But this was an agreement purely in the interest of the bank, and in order that it might have the privilege of protecting its security by advances for feed when in its judgment desirable. This, however, did not bind the bank to furnish such feed, and the fact that there was no such obligation resting upon the bank as a result of the written instrument executed is frankly conceded by counsel in the briefs at bar.
•‘Q. Mr. Fritzlen, in that conversation with Smith, was anything said about where he was to buy the feed? A. No, sir. Q. Was anything said about how it was to be delivered to you? A. No, sir. Q. Was anything said to the effect that it was to be delivered to you on the cars any place? A. No, sir. Q. What, if anything, was said between you and Mr. Smith with reference to where the 1'oed was to be sent? A. He was to buy the feed and send it to Kingsdown, Kan. Q. Did you know how he was going to consign it? A. No, sir. Q. Did you give any directions whore he was to buy it? A. No, sir.”
The ultimate contention, therefore, of defendant, is that Smith agreed on or about January 6, 1903, on behalf of the bank to buy the feed and send it to him at his ranch.
The foregoing is all that occurred between the parties tending to show a contract as to feed. What was done in its fulfillment by the hank? On the day of the January conversation between Fritzlen and Smith, variously stated as from January 6th to January 8th, Fritzlen saw a dealer in oil cake, to wit, one Cherfy, at Kansas City, with regard to the purchase, of this food for the cattle. Having talked with him, he returned to Smith’s office, where he reported to Smith what he had found out as to prices from Cherry. Smith and Fritzlen thereupon went around to Cherry’s office with a view of then and there providing for the feed, but found the office closed for the day. It being necessary that Fritzlen should return to his home in Kansas that night, Smith promised Fritzlen that he would ’ go around and see
Upon this state of the record a number of points are raised against this judgment upon the counterclaim. Among these are the contentions that the bank, if under obligations at all, was under obligations simply to have this feed placed on board cars and shipped to Fritzlen, and that it seasonably complied with this duty in shipment from Little Rock on February 6, 1903. There is a further defense urged that the loss of the cattle was due to an unprecedented storm, and thus to the act of G.od. It is also said that there was a fatal failure of proof, in that it was not shown that any of the cattle lost belonged to the bank’s mortgage; there having been on the range, not only the cattle mortgaged to plaintiff, but .other cattle covered by mortgages to others. It is further said that the loss was due to Fritzlen’s negligence,, in that although failing to receive the feed for some weeks after February 8,
We find it, however, sufficient, without disposing of these several contentions seriatim, to hold, as we do, that, even assuming that there was a sufficient consideration to constitute what passed between Fritzlen and Smith a binding contract upon the bank, the agreement there made was one simply “to buy and send” the cake needed. This Smith, on behalf of the hank, did within a reasonable time, indeed immediately, by placing the order with a reputable broker, by shipment upon a date which, but for unforeseen intervening causes, would have insured the arrival of the cake by the time it was needed, by sending Fritzlen the bill of lading weeks before the storm, by locating the missing shipment and starting it forward, when it was finally learned that the shipment had not been received. We are of opinion that any contract to buy and send was complied with by what the bank did. Such an agreement was not one to see that delivery was made. It was not an agreement to buy, send, and deliver, but to buy and send. It was satisfied by placing the order and delivering for shipment to a common carrier, each within a reasonable time, and with reasonable promptness in view of the surrounding circumstances. It follows, therefore, that the counterclaim was without evidence to sustain it, and the judgment awarding damages thereunder must be set aside.
In this view of the matter there is no occasion for us to consider the questions raised upon the record as to the admissibility of evidence, or the question raised by the record as to whether there should have been an offset between the amount recovered by the hank upon its second cause of action, and the amount recovered by Fritzlen upon his counterclaim. Since there was no right of recovery upon this latter, the details of the legal proceeding by which the amount was ascertained become immaterial, and we will not incumber the opinion with any discussion of this.
It results from the foregoing that the judgment of the court below will as to plaintiff’s second cause of actiou he affirmed, and as to defendant’s counterclaim reversed, with instructions to the court below to set aside the verdict and to reinstate the cause for further proceedings in conformity with the law.