54 Neb. 59 | Neb. | 1898
Warren Dales resides in Cuming’ county, and is engaged in tlie business of raising, feeding, buying, and selling of cattle. He executed and delivered to tlie plaintiff Jolm L. Hill three chattel mortgages on 219 specifically described steers, then in the possession of Dales, in said county, to secure the indebtedness incurred for the purchase price of the cattle, which mortgages are described as follows: One dated March 15, 1892, to secure $463.96, duly filed for record on the 26th day of the same month; another dated April 6, 1892, for the sum of $2,-860.52, which was duly recorded two days later; and the other was given May 21, 1892, for $1,440.82, which was duly filed for record six days after its date. Subsequently, on June 14, 1892, Dales gave to the Campbell Commission Company, of Chicago, one of the defendants
The record discloses that at the trial plaintiff, in open court, limited his claim to a recovery to the conversion of cattle by the defendants included in the shipment under the date of January 27, already alluded to. The evidence contained in the bill of exceptions tended to show that said 243 head were shipped to, and sold by, the Campbell Commission Company without plaintiff’s knowledge or consent; that he held superior mortgage liens upon a portion of the cattle included in said shipment; that one Clausen, the agent and representative of the Campbell Commission Company, and Foley, of said firm of Foley & Chittenden, procured the cattle to be shipped, assisted Fales in cutting out the 243 steers from the remainder of the herd, in driving them to Pender, and in loading them on the cars at that place for shipment to Chicago. Foley and Fales went with the stock to Chicago, where the
Instructions 5, 6, 9, and 10, given by the court on its own motion, and defendants’ eighth request are criticised by counsel for .plaintiff. The first four of these are in the language following:
“5. But if you find from a preponderance of the evi-. dence that there was some of the P and K cattle in the shipment of 243 head, you will then further inquire and determine how and under what circumstances, and by whom, the said shipment was made, and you are instructed that if said shipment was made by Warren Fales of his own volition and without insistence or' direction from the defendants, or either of them, then the defendants would not be liable in this action and your verdict should be in favor of defendants.
“6. To justify a verdict in favor of the plaintiff it must appear from a preponderance of the evidence that defendants, or one of them, directed and caused said shipment to be made for their own use and benefit and without the consent of the plaintiff, and that there were cattle in said shipment on which plaintiff held a first mortgage lien.”
“9. If said shipment of 243 head was made voluntarily by Warren Fales, and not by the direction of the defendants, or either of them, the plaintiff cannot recover in this action.
“10. The fact alone that James Foley assisted in assorting and loading the cattle, and went to Chicago with them, would not justify a verdict against him or any of the defendants. To hold the. said Foley or his firm liable it must appear that he was acting in a capacity different from a hired man] or in giving neighborly assistance. It must appear from the evidence that the shipment was made by reason of some direction or control of one or both of the defendants in pursuance of which said Foley acted.”
The following propositions are deducible from the authorities :
1. A conversion is any unauthorized act which deprives the owner of his property permanently or for an indefinite time. (Stough v. Stefani, 19 Neb. 468.)
2. In an action for conversion the motive which prompted the defendant to dispose of, or appropriate to his own use, the property of plaintiff is an immaterial issue. Whether defendant acted in good faith or not is of no consequence. (Morrill v. Moulton, 40 Vt. 242; Freeman v. Underwood, 66 Me. 229; Miller v. Wilson, 98 Ga. 567; Union Stock Yard & Transit Co. v. Mallory, 157 Ill. 554; Hoffman v. Carow, 22 Wend. [N. Y.] 285; Koch v. Branch, 44 Mo. 542; Knapp v. Hobbs, 50 N. H. 476; Lee v. Mathews, 10 Ala. 682; Spraights v. Hawley, 39 N. Y. 441; Kimball v. Billings, 55 Me. 147; Tobin v. Deal, 60 Wis. 87; Platt v. Tuttle, 23 Conn. 233; Lee v. McKay, 3 Ired. [N. Car.] 29.)
3. One who aids and assists in the wrongful taking of chattels is liable for a conversion, although he acted as agent for a third person. (McCormick v. Stevenson, 13 Neb. 70; Stevenson v. Valentine, 27 Neb. 338; Cook v. Monroe, 45 Neb. 349; Osborne Co. v. Plano Mfg. Co., 51 Neb. 502; McPartland v. Read, 93 Mass. 231; Edgerly v. Whalan, 106 Mass. 307; Lee v. Mathews, 10 Ala. 682; Gage v. Whittier, 17 N. H. 312; Kimball v. Billings, 55 Me. 147; McPheters v. Page, 22 Atl. Rep. [Me.] 101.)
Under the foregoing principles each and all of the instructions to which reference has been made were manifestly erroneous. By the fifth, sixth, ninth, and tenth
It is argued by counsel for defendants that the amended petition does not state a cause of action; hence no prejudice could have resulted from the giving of the instructions. If plaintiff’s pleadings would not have supported a verdict in his favor, had one been returned, it is obvious that he cannot be heard to complain of errors in the charge of the court. It is not claimed by plaintiff that the paper filed by him, which is designated “Amended Petition,” states any ground for action, but it is insisted that it is merely an amendment to the original petition, and was not intended to take the place of the latter. This position is undoubtedly sound, and was doubtless so regarded by the defendants in the court below, inasmuch as they answered both the “petition and the amended petition.” Construing the original and the amended petitions together, they do not state sufficient facts to authorize a recovery for the conversion of the cattie. Plaintiff alleges the execution by Pales to himself of three chattel mortgages on 219 steers then in the possession of the mortgagor, the recording of the mortgages, that plaintiff had a lien on the property, and that defendants had personal knowledge thereof. There is not
Affirmed.