Lafayette County Bank v. Metcalf

Decision Date20 February 1888
Citation29 Mo.App. 384
PartiesLAFAYETTE COUNTY BANK and JOSEPH WILSON, Trustee, Respondents, v. J. METCALF et al., Appellants.
CourtKansas Court of Appeals

APPEAL from Johnson Circuit Court, HON. CHARLES W. SLOAN, Judge.

Reversed and remanded.

The case is stated in the opinion.

TAYLOR & POLLARD and O. L. HOUTS, for the appellants.

I. The petition fails to state facts sufficient to constitute a cause of action, in this: It shows that the plaintiffs, at the date of sale of the cattle by appellants, had neither the right of possession nor the ownership of said cattle. Barnet v. Timberlake, 57 Mo. 501; Sheble v Curdt, 56 Mo. 437; Stonebraker v. Ford, 81 Mo 532; Burnet v. Custafson, 54 Ia. 36; Caldwell v Pray, 41 Mich. 307; S. C., 32 N.W. 54; Beach v. Derby, 19 Ill. 617; Spalding v. Mozier, 57 Ill. 148; Sherman v. Clark, 24 Minn. 37; Davis v. Bruce, 1 Mont. 463; Porter v. Parmley, 43 How. Pr. 445; Hathaway v. Brayman, 42 N.Y. 322; Hammill v. Gillespie, 48 N.Y. 556; Skiff v. Solace, 23 Vt. 279; Cole v. Clark, 3 Cush. 399.

II. The mortgage was void because of the insufficient description of the property to be covered thereby. Goddard v. Jones, 78 Mo. 520; Stonebraker v. Ford, 81 Mo. 532; Golden v. Cockrell, 1 Kas. 259; Blakeley v. Patrick, 67 N.C. 40; Caldwell v. Trowbridge, 26 N.W. 49; Price v. McComas, 31 N.W. 511; Eggert v. White, 13 N.W. 429.

III. The trial court erred in refusing the appellants' request to open and close the case to the jury. Carson v. Porter, 22 Mo.App. 186; Wade v. Hardy, 75 Mo. 401; Bates v. Forcht, 89 Mo. 128; Foley v. Alkire, 52 Mo. 316; Porter v. Jones, 52 Mo. 403.

IV. The court erred in giving plaintiffs' and refusing defendants' instructions. See cases cited supra.

GRAVES & AULL, for the respondents.

I. By the record proper no error is apparent. No exception whatever was saved by the appellants to the action of the circuit court in overruling the motions in arrest of judgment and for a new trial, and the appeal should be dismissed. This point is conclusively established by the decision in the case of State v. Hitchcock, 86 Mo. 231, in which the decision, as therein made, is herein literally quoted as follows, to-wit: " This cause is before us on a writ of error prosecuted by the plaintiff from a judgment of the Harrison county circuit court, rendered in favor of the defendants. The record fails to show that any exceptions were taken to the action of the court in overruling the motions in arrest of judgment and for new trial, and finding no error in the record proper, the judgment is affirmed." Unless the abstract presented by appellants shows such exceptions to be taken to the action of the trial court as will warrant a reversal, thereby setting forth the error complained of, this court will consider that no error has been committed. According to the decision of Philips, P. J., in Algear v. Walsh, 24 Mo.App. 142, unless the party alleging error makes it apparent by his abstract of the record, this court will presume that no error has been committed. Directly in support of this motion see decision of this court by Hall, J., in Goodson v. Railroad, 23 Mo.App. 77. But the most conclusive decision is that of Philips, P. J., in Coy v. Robinson, 20 Mo.App. 462. This decision, we submit, is conclusive upon this motion.

II. Prima facie, as well as by the evidence in this case, this mortgage was valid as between the mortgageors and mortgagees, and, therefore, was valid as against appellants, the agents of the mortgageors. Stonebraker v. Ford, 81 Mo. 538; Smith v. McLean, 24 Ia. 322; Hayes v. Wilcox, 17 N.W. 110; Rowley v. Bartholomew, 37 Ia. 374; Ivins v. Hines, 45 Ia. 73; Jones on Chat. Mort., sec. 54, et passim; Griffith v. Wheeler, 2 P. 842; Muir v. Blake, 11 N.W. 621; Tolb??rt v. Horter, 22 N.W. 126; Yant v. Harvey, 7 N.W. 675; Allgear v. Walsh, 24 Mo.App. 142.

III. If this mortgage was good between the mortgageors and mortgagees in Lafayette county, it was also good against the mortgageors' agents, Metcalfe, Moore & Company, notwithstanding their place of business was in East St. La. It being duly recorded, even third persons, non-residents, would be affected with notice thereof. Feurt v. Powell, 62 Mo. 526; Spraights v. Hawley, 39 N.Y. 441; Keenan v. Stinson, 20 N.W. 364; Kock v. Branch, 44 Mo. 543; Rice v. Cobb, 9 Cush. 303; Marks v. Robinson, 2 So. 292; Hamilton v. Caruthers, 19 Mo.App. 567; Martin v. Benoist, 20 Mo.App. 270; McCandless v. Moore, 50 Mo. 512; Judson v. Cooke, 11 Barb. 642; Mendenhill v. Rainor, 2 Hilt. 319; Fox v. Jackson, 8 Barb. 355; Story on Agency [8 Ed.] sec. 312, and cases cited.

IV. Appellants' third point is untenable wherein they claim that at the date of the sale of the cattle the respondents had not the right of possession. The terms of the mortgage itself gave respondents that right. See, also, Allen v. McMonagle, 77 Mo. 481, and cases cited; Crocker v. Atwood, 12 N.E. 421.

V. The instruction granted for respondents was correct in naming the sum of $1,212, or, at least, contained no error on that account. The calculation shows $1,312 due. If any error exists therein it is harmless. Wells v. Zallee, 59 Mo. 509.

VI. The court properly instructed concerning ratification. Windsor v. Bank, 18 Mo.App. 665.

VII. There was no error in the action of the court concerning the instruction as to the weight of evidence; nor in refusing the appellants the opening and concluding argument to the jury. 1 Greenl. Evid. [13 Ed.] sec. 74; Ibid, p. 94, note 1.

TAYLOR & POLLARD, in reply.

I. Not one of the authorities cited by respondents controverts the doctrine established by the authorities cited in our brief.

II. The mortgage is void as between the immediate parties to it. It created no lien because of its vagueness.

III. The clause in the mortgage authorizing the mortgagee to take possession in a certain case is an option, which in no way affects the mortgageors' ownership, unless and until the mortgagee acts upon the option, and actually enters and takes possession.

PHILIPS P. J.

The facts of this case, briefly, are about as follows: Taylor B. Winn and James M. Winn borrowed of the plaintiff bank the sum of two thousand dollars, to secure which they executed to Joseph Wilson, as trustee for the bank, a chattel mortgage, in the form of a deed of trust, on eighty-five head of cattle, being fattened on the farm of said Winns, in Lafayette county, for market, together with one hundred and fifty head of hogs following said cattle. The note was payable six months after date. About a month before the maturity of the note, the Winns, being in possession of the cattle, shipped them to the defendants, who were commission merchants at East St. Louis, in the state of Illinois, to sell for the said Winns. Defendants accordingly sold the said cattle, and paid over the proceeds, after deducting about forty-one dollars for their commission, and other charges for feed and lotting, to another bank, a creditor of the said Winns, and sending the Winns a check for the balance, amounting to over nine hundred dollars, which check they delivered to the plaintiff bank in part payment of the mortgage debt, and obtained an extension of time on the balance. The bank claims that it did not know, when it so received and applied said check, that the mortgageors had sold the cattle, or that the check was the proceeds of such sale. It claims that it did not discover the fact of the removal of the cattle for nearly one year thereafter. The defendant's evidence tended to show that the bank, through its cashier, was informed of the fact of the shipment and sale of the cattle, and was told that the check was part of the proceeds of such sale, at the time of the payment. There was also some evidence on the part of defendants tending to show that there were about ninety-five head of cattle on the farm belonging to the Winns, of a like description with the eighty-five head described in the mortgage.

At the conclusion of the plaintiffs' evidence the defendants demurred thereto, which the court refused. The court directed the jury, in effect, that unless they found from the evidence that the bank knew when it received the said check that it was part of the proceeds of the sale of said cattle, and intended, when it gave the credit on the note, to ratify the sale, they would find for the plaintiff the balance due on said note. The whole amount of the sale so made by defendants was over six thousand dollars. The jury returned a verdict for the plaintiff, and defendants have appealed.

I. This action is in the nature of trover, and the important question, lying at the very threshold of this controversy, is, can the plaintiffs, as mortgagees, maintain the action of trover against these defendants for the balance due on the mortgage?

It may be conceded to the plaintiffs that defendants are to be treated the same as if they knew of the existence of the mortgage (it having been put to record in Lafayette county, where the mortgageors resided and the cattle were situated). In such case the office of mere commission merchant would not shield defendants. Spraight v. Haylew, 39 N.Y. 441; Koch v. Branch, 44 Mo. 543. It may further be conceded, that the mortgage being good as between the parties, and binding on the public, in the state where it was executed and recorded, by the rule of comity, was valid, and pursued the property outside of the state, where plaintiffs might have followed it with their mortgage. Smith v. Hutchings, 30 Mo. 385; Rice v. Cobb, 9 Cush. 303.

The mortgage in question contained the following conditions:

" And in case default is made in the payment of the debt above mentioned, or any part thereof, or of the interest due thereon, on any day when the same ought to be
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