50 Kan. 467 | Kan. | 1893
The opinion of the court was delivered by
This was an action brought by W. W. Guthrie against the George R. Barse Live Stock and Commission Company, J. H. Simcock, and the Emporia National Bank, to recover for the wrongful conversion of 60 head of steers, of the alleged value of $2,500, and 84 hogs, valued at $1,050. The plaintiff below based his claim to the cattle and hogs upon a chattel mortgage executed by Anson Elliott
“The said 50 head of steers were not in fact at said time on said farm, but had been bargained for and purchased, and were in fact owned by said Elliott, and he was then entitled to and in fact in the possession thereof, by virtue of his contracts for purchase thereof, and then having in fact the equitable title thereto to the extent of the value thereof, and which was the case in fact as to the certain 60 head of such steers between said time and September 17, 1888, in fact by said Elliott placed on said R. J. Millard farm as the owner thereof, and then and thereafter in possession as such owner, until as hereinafter stated; but on said September 11, 1888, said Elliott represented to the plaintiff that such steers to the amount of 50 head thereof were on said Millard farm, and others thereof to the amount of 60 head in all belonged to him and would be gathered up and placed on said Millard farm within a few days, and as soon as the same could be reasonably done; and upon which representations the plaintiff had the right to and did rely in accepting such chattel mortgage and thereon extending credit to said Elliott, and which said 60 head of steers were then and thereafter worth fully the sum of $2,500; . . . and the plaintiff, by virtue of such chattel mortgage, had the first and valid chattel-mortgage lien thereon, and thereby, a legal title thereto.”
The petition further sets forth an agreement between the live stock commission company and Elliott, made on September 17, 1888, which recites that the company is the owner of the cattle and hogs placed upon the Millard farm, and that they were to be fed and cared for by Elliott without any expense to the company, and that all profits over and above the purchase price, and interest on the same at the rate of 12 per cent, per annum, together with the commission for buying and selling the stock, should be applied on the indebtedness of Elliott to the company. The agreement was filed for record in the office of the register of deeds on September 28, 1888, and it is alleged that the agreement was in fact a security in the Eature of a chattel mortgage upon the cattle and hogs, and was drawn up in the form mentioned with the fraudulent intent of defeating the plaintiff below, and that
“ In fact at the most but chattel-mortgage security to said George R. Barse Live Stock Commission Company, subordinate to the plaintiff’s chattel-mortgage security.”
The defendants below denied any fraudulent purpose or any attempt to conceal from plaintiff the real character of the transaction between Elliott and itself, and alleged that the steers and hogs were the absolute property of the company before Guthrie’s mortgage was executed. A trial was had without a jury, and the court made a general finding in favor of Guthrie, and awarded him judgment against the George R. Barse Live Stock Commission Company and J. H. Simcock for $3,528, the full value of the steers and hogs alleged to have been wrongfully converted.
It is contended by plaintiffs in error that the testimony does not sustain the finding and judgment of the court. As to the sufficiency of the evidence to sustain the finding of Guthrie’s right to recover for the hogs, there can be little question. It is true that the plaintiffs in error show that Elliott was largely indebted to them, and they offer considerable evidence tending to show that a settlement was had between the company and Elliott in May, 1888, in which Elliott gave the company a mortgage on his real estate, and also upon his growing crops, and provided, that when the crops were matured the company was to place upon Elliott’s premises cattle and hogs, to which the crops should be fed, and when they were fattened the company was to sell them, take out the money paid for the stock, and allow it on Elliott’s indebtedness; and that in pursuance of this arrangement the hogs were purchased for the company, and the price of the same was paid to Elliott by Simcock about the time the hogs were put on the Millard place. The written agreement made on September 17, 1888, when all the hogs and cattle had been brought in and placed on the Millard place, was substantially what was claimed to have been agreed upon in the preceding May, and tends to confirm the theory of the company. On
The finding and judgment awarding a recovery for the conversion of 60 steers cannot be sustained. If the plaintiff below is entitled to recover for the steers fed on the Millard farm, such recovery must be limited to those described in the mortgage upon which he bases his right. "While there were 102 head of steers described in the mortgage, 52 of them were described as being at the home place of Elliott, and these formed no part of the 60 for which a recovery is sought in this action. They had been previously mortgaged to the Emporia National Bank, and it appears from both the pleadings and the evidence that none of them are involved in this controversy. It appears that Elliott did not undertake to give a mortgage to the plaintiff below on more than 50 cattle in addition to those at the home place, and we find nothing in the record which would in any event warrant a recovery for more than 50 head of the steers in controversy. No portion of the 60 head of steers fed upon the Millard place were taken from the home place, and in fact none of the steers were upon the Millard place or in the possession of Elliott at the time the mortgage was executed. Of the 60 head that were placed on the Millard farm, 30 head were purchased from J. B. Moffat, for
The question respecting the ownership of the cattle is very contradictory, and the district judge has settled the conflict so far as the evidence tends to support the ownership of Elliott and his right to mortgage such as he then owned. If Elliott owned the cattle when the mortgage was executed, Guthrie acquired a lien on as many of them as were sufficiently described, and from such description could be identified. Elliott, of course, could not execute a valid mortgage upon the property of the company nor upon property which was not then owned by him. A contract to convey or mortgage cattle to which he had no title, but which were afterward acquired by him, although not constituting a chattel mortgage under the law, might become of equal force as between the mortgagor and mortgagee after the mortgagor had acquired title. Such a transfer might also be valid as to third
As there will be another trial, we will not undertake to determine upon the evidence in this record as to whether the company was an owner or a mere mortgagee of the stock in question, nor as to whether the knowledge, purpose and conduct of the parties were such as to give Guthrie a valid lien on the stock mentioned in his mortgage. The question whether the steers mentioned in the mortgage are sufficiently described, and as to how many of them can be identified under the description given, must be settled by the testimony received on the new trial, and cannot with propriety be discussed here. If there had been special findings stating the number and. value of the hogs alleged to have been converted, the judgment to that extént might have been affirmed; but no special findings were made, and, as the judgment was a general one, there must be a complete reversal, and a new trial.