Everett v. Barse Live Stock Commission Co.
115 Mo. App. 482
Mo. Ct. App.
1906
Check Treatment

Lead Opinion

ELLISON, J.

— This is an action for the amount of a bill for pasturage of a lot of cattle. The judgment in the trial court was for the plaintiff. The facts necessary to state for an understanding of the points involved are these: The plaintiff had the cattle in possession from the owner and had an unpaid claim for pasturage. Before the cattle were turned over to plaintiff to pasture by the owner the latter had mortgaged them to a commission company known as the McKee company. The owner took the cattle from plaintiff’s pasture without his knowledge or consent and without paying his agister’s bill, and shipped them to the mortgagee, the McKee company. The latter company shipped the cattle to defendant company at the National Stock Yards in Illinois, who sold them and remitted the money to the McKee company, who shortly thereafter failed in business. Plaintiff then sued the company for his unpaid bill for pasturage. The owner of the cattle and plaintiff resided in the State of Kansas. The cattle were in that State and were pastured there, and there was where possession was taken from plaintiff. The mortgage was given upon them in that State and properly recorded there..

In this State there is no doubt that a prior chattel mortgage takes precedence of a subsequent agister’s lien. [Stone v. Kelley & Son, 59 Mo. App. 214; Baskin v. Wayne, 62 Mo. Ápp. 515; Miller v. Crabbe, 66 Mo. App. 660.] It was so decided by the St. Louis Court of Appeals. [Lazarus v. Moran, 64 Mo. App. 239.] And so *487the law is in Illinois, where the cattle were sold by this defendant. [Charles v. Neigelsen, 15 Ill. App. 17.] But in Kansas the rule is the reverse, and the agister’s lien takes precedence of the prior chattel mortgage. [Case v. Allen, 21 Kans. 217.] It therefore appears that in Kansas, which was the seat of the plaintiff’s contract of agistment and of the owner and mortgagee’s mortgage contract, the agister had a lien superior to the mortgagee’s lien. This was a right of which he could not be divested by surreptitiously or forcibly taking the possession from him. Possession is generally necessary to unwritten liens, but a parting with possession against one’s will and consent will, not affect his lien. Nor does the fact that the cattle were shipped to Missouri and thence to Illinois, and there sold, in neither of which States, as we have said, does the Kansas rule as to priority between liens obtain, affect plaintiff’s priority or his right to enforce it.

It is quite true, as stated by defendant, that the courts of one State will not enforce rights or contracts arising in another State when it is against morality or the public policy of such State. But this is not that character of case. We enforce in this State, contracts for interest, good where made, but'usurious here. [Bank v. Cooper, 85 Mo. App. 383.] If that can be done, there ought not to be any scruple in enforcing a right of the character of plaintiff’s. That a State will enforce rights existing under the laws of another 'State which would not be enforced in the State itself, is a fundamental rule of comity, many examples of which will be found in plaintiff’s brief.

It is finally insisted that the defendant was but an innocent commission firm with no interest in the property and no notice of plaintiff’s claim. That feature makes this a hard case, but it cannot be allowed to overcome well-established principles of law. This defendant by selling the cattle Avas guilty of conversion, however innocent of plaintiff’s claim,’and however well convinced *488of the right of the mortgagees to dispose of them. [Mohr v. Langan, 162 Mo. 497-502; Bank v. Morris, 114 Mo. 255; Bank v. Metcalf, 40 Mo. App. 494; Kellar v. Garth, 45 Mo. App. 332; Laughlin v. Barnes, 76 Mo. App. 258.] The foregoing considerations lead to an affirmance of the judgment.

All concur.



Rehearing

ON MOTION FOR REHEARING.

PER CURIAM.

— But it is said, in a motion for rehearing, that the case of Bank v. Brecheisen, 65 Kans. 807, ought to determine the case in defendant’s favor. It is there held that where the lien is one which is not en-forcible under the statute of Kansas, but depends for validity upon a contract between the owner and the agister, the lien of the prior mortgage is superior. To make that case have a bearing upon the present controversy, it is said that the plaintiff’s lien here arose under an agreement between him and the mortgagor owner that plaintiff would pasture the cattle and be responsible for their return. Such agreement is, doubtless, no more than is made in most every case of agistment, and if agreements of that nature ousted the statute of application it would be of little practical use. A contract for feeding or pasturage does not prevent a statutory lien. There may be contracts for a lien in instances where the statute would not apply, in which cases, of course, the lien would depend wholly upon the contract. But where the facts concerning the agistment make a demand for which the statute gives a lien, a contract between the owner and the agister that the animals are to be pastured or fed in the manner, for the time and at the price agreed upon, will not affect the lien for the reasonable charge provided for in the statute.