38 Neb. 238 | Neb. | 1893
The First National Bank of Mount Pleasant, Iowa, based its right to recovery in the district court of Douglas county, Nebraska, upon the alleged fact that as mortgagee it held a lien upon certain cattle sold by Robert W. Buchanan to divers and sundry persons through the commission firm of Byers, Patterson & Company at South ■ Omaha, Nebraska. One mortgage was made by William Davis on January 18, 1888, to plaintiff’s cashier, to secure payment by ijavis of his note for $1,000 of even date with said mortgage, due in six months, and was filed for record December 21, 1888; an agreement for an extension of the time of payment of said note of six months having, meantime, been entered into between the maker and payee. Another mortgage between same parties as the first was of date August 9, 1888, to secure payment of a promissory note made by the mortgagor to the mortgagee, for the sum of $500, with ten per centum per annum interest, due in six months from its date, August 9, 1888. This mortgage was also filed for record December 21, 1888. The plaintiff alleged in its petition that Robert W. Buchanan, on or about December 19, 1888, being employed as a servant and agent of said mortgagor, obtained possession, or at least temporary control, of the mortgaged property, and having wrongfully transported the same to South Omaha, Nebraska, did sell that part of the same in respect of which relief was prayed in this action, and that as. proceeds of such sale of the property last above referred to, Byers, Patterson & Company, the firm of commission merchants
The answer of William Davis admitted the facts to be as set forth in plaintiff’s petition, and its prayer was that plaintiff should be decreed the relief prayed in its said petition. The answers of the other defendants, except that of Buchanan, simply pleaded the interest in the subject-matter of the controversy above indicated as being held by each of said defendants. Robert W. Buchanan answered, admitting the indebtedness of William Davis to plaintiff, but denying every other averment of plaintiff’s petition. Buchanan further alleged that he was, previous to the sale, in the lawful possession of, and had the right to sell, the property which he did sell at South Omaha; that about March 17, 1884, he, the said Buchanan, entered into partnership with William Davis, his father-in-law, and that by the terms of the partnership agreement said Davis was to furnish stock to be placed upon the farm of William Davis’ wife in Henry county, Iowa, and that said Bu
There was a reply in denial of the averments of the answer of Robert W. Buchanan. As between the defendants themselves there were'other pleadings, the nature of which is not of importance in this controversy, as the issues are mere collateral incidents thereto. On the final hearing a judgment was rendered against the plaintiff, and therein it was ordered that the money in the hands of the clerk should be paid to Robert W. Buchanan, in whose favor the equities were, by the decree, found to exist.
The evidence was mainly directed to two questions of fact: First, the identity of the property sold in South Omaha with that mortgaged; second, the authority of Robert W. Buchanan to make the said sa'e. The cattle sold were thirteen two-year-old steers, three long yearlings, nine two-year-old heifers, and one cow. The mortgage
The evidence of William Davis is that he sold Geesecketwenty two-year-old steers, but he said that he did not suppose he sold all the two-year-olds included in the mortgage to secure payment of the $500 note, because he did not sell enough cattle to cover those mortgaged, which amounted in value to over a thousand dollars. Robert W. Buchanan testified that these cattle were sold August 28, 1888; that they were brought to the farm something like twenty or twenty-one days before the date last named. As-it was, according to his own evidence, the general custom for Mr. Davis to mortgage stock as soon as he bought it to secure the bank for the money used in making, the purchase, it seems reasonable, in the conspicuous absence of proof to the contrary, that the mortgage of August 9 was executed to secure such part of the purchase price of these cattle as Mr. Davis borrowed of the bank for that purpose. At
On this last proposition the evidence is conflicting as to the arrangement under which the farm was to be operated. Mr. Buchanan testified that on the date last named it was agreed between Mr. Davis and himself that he was to have one-lialf the crops and stock raised on the farm subsequently to the above date, in which he is corroborated by the testimony of his wife. There- is ample evidence of just such a continuous course of dealings as such an agreement would sanction from March 17, 1884, up to the time when the cattle were sold in South Omaha. This is not, therefore, a case in which a mere stranger had taken away and sold cattle, but it is one in which the party by whom the sale was made was but exercising a contract right so to do. The findings of the district court were fully justified by the evidence, and its judgment is therefore
Affirmed.