53 Kan. 51 | Kan. | 1894
The opinion of the court was delivered by
This action was brought to recover for the alleged conversion of nine heifers and three bulls, of the value of $400. C. B. Bacheller, who owned a herd of cattle, about 80 in number, gave mortgages upon them to John B. Lafeyth and the Emporia National Bank. Lafeyth had a mortgage on 14 of them, to secure an indebtedness of $300, some of which appear to have been included in the mortgage given to the bank. It seems to have been the understanding of the officers of the bank that the bank’s mortgage covered
If, as contended by the bank- it did not participate in the sale, and if Bacheller alone sold the cattle and turned the proceeds of the same over to the bank in payment of an existing indebtedness against him, and this was done without any knowledge by the bank that any particular portion of
From the evidence and findings of the court, we must assume that the bank had no connection whatever with the disposition of the cattle sold at private sale, but reading the testimony of the defendant, we cannot say that it had no connection with the disposition of the two animals covered by the Lafeyth mortgage, which were disposed of at public sale. If the bank joined with Bacheller in wrongfully selling and disposing of the mortgaged cattle, a liability arises against either or both of them for the wrongful conversion of the same. Now, the testimony offered in behalf of the bank shows that the bank considered that it had a mortgage on all of the cattle; that it consented and agreed that a public sale of them should be made, and the proceeds applied in discharge of Bacheller’s indebtedness. The sale, it is true, was advertised in the name of Bacheller, and did not purport to be a sale under the mortgage of the bank. It is also stated that Halleck, an officer of the bank, attended the sale, mainly at the instance of Bacheller, to examine and pass upon promissory notes and securities which purchasers might give for cattle. Halleck, however, states that he went there by “request of Bacheller and the bank, to look after the interests of the bank.” He states that he went there at the request of Major Hood, who was the manager of the bank, and attended the sale for the purpose of looking after the interests of the bank, as the bank claimed the cattle under a chattel
The judgment of the district court will be reversed, and the cause remanded for a new trial.