Howell v. War Finance Corporation
Citation | 71 F.2d 237 |
Decision Date | 31 May 1934 |
Docket Number | No. 7037.,7037. |
Parties | HOWELL v. WAR FINANCE CORPORATION. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
W. E. Ferguson, of Holbrook, Ariz., for appellant.
J. O. Seth, of Santa Fé, N. M., and C. B. Wilson and Orinn C. Compton, both of Flagstaff, Ariz., for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
The facts as disclosed by the record are as follows: In the year 1921, E. P. Howell, a cattle grower of Navajo, Ariz., now deceased, sought the assistance of his business associate, Julius Wetzler, of Holbrook, Ariz., in arranging a loan of $25,000, to be used in paying a prior indebtedness of Howell to the Arizona State Bank, of Winslow.
The precise business relations between Howell and Wetzler are not entirely made clear in the record, for it does not disclose the earlier dealings between the two men. In one of his letters to Wetzler, however, under date of August 1, 1921, Howell stated that their business affairs were "badly mixed up."
The earliest exhibit now before us is a letter from Howell to Wetzler, dated July 26, 1921. In that letter Howell said:
In his letter of August 1, 1921, Howell elaborated upon the plan:
It appears, however, that Howell's "financial statement" did not "show up all right," for we find testimony by T. M. Quebedeaux, vice president of the Navajo County Live Stock Loan Company, and president of the Arizona State Bank, to the effect that Quebedeaux told Howell that the former believed "Wetzler could make a statement that would warrant my making paper with title to the property."
Be that as it may, on October 7, 1921, a note and chattel mortgage for $28,200 was executed in favor of the Navajo County Live Stock Company by Wetzler. The chattel mortgage covered 2,200 head of cattle, therein specifically described by brands and earmarks, and located on the Ed Howell ranch. The latter instrument was properly recorded on October 18, 1921.
In this connection, it should be stated that, at the trial in the court below, excerpts from a referee's transcript in the case of Wetzler v. Howell, 37 Ariz. 381, 294 P. 611, in the state court, were admitted over the appellants' objections. In these excerpts was contained the following stipulation:
Supplementing the foregoing stipulation, it was conceded in open court at the trial below, that the note represented the indebtedness of Mr. and Mrs. Howell to the Arizona State Bank. And the mortgage from Wetzler to the live stock loan company and that given by Howell to the bank covered the same cattle.
The excerpts from the state proceedings above referred to also contained testimony by Howell that Wetzler "was to pay all indebtedness to the Arizona State Bank." The record herein clearly shows that Wetzler did pay Howell's notes to the Arizona State Bank with the funds derived from the note of October 7.
On November 3, 1921, the Howells executed a bill of sale of the cattle involved in the instant case to Wetzler, for the recited consideration of $50,000. This instrument was recorded in "Book No. 2 of B. of S. Page 142" of the records of Apache county, on November 9, 1921.
The appellee insists that the bill of sale was reduced to writing some time in the month of October, 1921; and, indeed, the document itself bears internal evidence that this surmise is probably correct. We cannot agree, however, with the appellee's similar inference as to the contract, infra, which bears no such internal evidence.
On November 3, 1921, there was executed by Wetzler and Howell a "Contract" upon which both parties herein strenuously rely. This document was recorded on November 4, 1921, in a book of "Agreements and Leases," in the records of Apache county.
The contract or agreement, as it is variously denominated, recites that Howell had on that day conveyed, "by deed, and bill of sale, and assignment of contract," copies of which were thereto attached, certain described real and personal property, the latter including the cattle involved in the instant case.
The agreement also sets forth that Howell shall have the right to repurchase the cattle from Wetzler for $50,000, payable in five years; that "the said transfer is being made only for the purpose of securing" Wetzler "for all sums of money now due" from Howell to Wetzler "and such other sums as may become due under the conditions of this contract"; that Howell shall remain in charge and possession of all the property, except in case of forfeiture as thereinafter provided; and that, where certain brands of stock are mentioned, it shall be understood to cover all increase of said stock, and all sales of increase shall be for the benefit of Howell.
The contract also contains the following provisions:
"It is further agreed that the interest on a like amount of the above money owing to the Santa Fé Pacific Railroad Company and to the Navajo County Live Stock Loan Company shall be charged at the rate which" Wetzler "may have to pay said railway company and said loan association on any money borrowed or now owing to them. Interest on balance of said money shall remain as above.
The day before the bill of sale was recorded, an application for the loan from the appellee was made...
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