Adamson v. Fogelstrom

• Decision Date: 05 December 1927
• Docket Number: No. 16032.,16032.
• Citation: 300 S.W. 841
• Parties: ADAMSON v. FOGELSTROM (W. M. LEITCH SHEEP COMMISSION CO., Garnishee).
• Court: Missouri Court of Appeals

300 S.W. 841

ADAMSON v. FOGELSTROM (W. M. LEITCH SHEEP COMMISSION CO., Garnishee).

No. 16032.

Kansas City Court of Appeals. Missouri.

December 5, 1927.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Suit by Ed Adamson against Walter Fogelstrom, in which an attachment was issued against the W. M. Leitch Sheep Commission Company, as garnishee. Judgment for plaintiff in the justice court was affirmed on garnishee's appeal in the circuit court, and the garnishee appeals. Affirmed.

Herzfeld, Beach & Steeper, of Kansas City, for appellant.

C. A. Capron, of Kansas City, and W. M. Glenn, of Tribune, Kan., for respondent.

FRANK, C.

This is a suit by respondent, Adamson, against defendant Fogelstrom, seeking recovery on an account for labor per formed by respondent and others, with attachment in aid, and W. M. Leitch Sheep Commission Company was summoned as garnishee. The suit originated in the justice court of Jackson county, where plaintiff recovered judgment and garnishee appealed. Upon a trial de novo in the circuit court, plaintiff again recovered judgment against the garnishee. The case is here on garnishee's appeal.

The trial below was to the court on an agreed statement of facts, as follows:

"It is agreed between the plaintiff and the defendant that the following is the correct statement of facts, upon which the above case is submitted to the court:

"That the defendant, Walter Fogelstrom, is a ranchman or farmer in Wallace county, Kan., whose post office is Wesken, Kan. Plaintiff contends that defendant Fogelstrom employed different men as hired men or help upon said farm or ranch; that among the men employed by said Fogelstrom was one named Ed Adamson, this plaintiff, one named Wayne Starkey, and one named Robert Adamson, and that the said Robert Adamson and Wayne Starkey have transferred and assigned their claims to Ed Adamson, who is the plaintiff herein; that said three men, to wit, Ed Adamson, Robert Adamson and Wayne Starkey, claim as wages as follows: Ed Adamson, $48.40; Robert Adamson, $215; Wayne Starkey, $225.49—which makes a total claim of $488.89.

"Defendant Fogelstrom was the owner of a large quantity of sheep, about 1,000 head; also about 70 horses and other goods used and found upon a large farm. That the State Bank of Sharon Springs, Kan., had a chattel mortgage on Pogelstrom's chattel property to the amount of about $5,800, which was duly filed in accordance with the laws in Wallace county, Kan., but no copy of said mortgage or any reference to it was ever recorded in Jackson county, Mo.; also, that the president of the bank had a personal note and mortgage on part of the live stock above mentioned to the amount of $9,591.78; and that the indebtedness owed to the president was not the property of the bank; that in January, 1923, the defendant, Fogelstrom, told the president of the State Bank of Sharon Springs that he wanted to ship part of the sheep covered by the bank's mortgage to market in Kansas City; that Mr. Woodhouse, the president of said bank, consented to said shipment with the agreement with defendant Fogelstrom that the proceeds from the sale of the sheep were to be deposited by the commission company selling the same to the credit of the State Bank of Sharon Springs at the Drovers' National Bank of Kansas City, Mo.

"That defendant, Fogelstrom, shipped 288 sheep which were part of the sheep covered by the mortgage above mentioned, in January, 1923, and that said sheep were consigned in the name of Walter Fogelstrom to the W. M. Leitch Sheep Commission Company, the garnishee, of Kansas City, Mo.; that said sheep came into the Kansas City market and were taken over for sale by the W. M. Leitch Sheep Commission Company; that this agreement was not communicated in any way to the commission company. The commission company was served with summons in garnishment in this case of Adamson v. Fogelstrom after it had received the sheep, and before they were sold.

"That the depositions heretofore taken shall be submitted as evidence in this case.

"The case was not tried by the justice on the merits between plaintiff and defendant. The suit was by attachment and garnishment. Garnishee was served with notice of claim of the State Bank of Sharon Springs and contended that proceeds of the sheep in question belonged to said bank."

Mr. Woodhouse, president of the bank that held the chattel mortgage on the sheep, and: the mortgagor, both testified that the understanding between mortgagor and mortgagee was that the mortgagor was to ship the sheep to Kansas City, Mo., and sell them on the market there. Mr. Woodhouse testified that this arrangement was made about 10 days before the sheep were shipped. The mortgagor testified that the arrangement was made some 30 days before the sheep were shipped and at that time he told Mr. Woodhouse that he expected to ship about January 15. The sheep were shipped on January 13 and arrived in Kansas City, Mo., on the morning of January 15. This shipment was made to garnishee, a commission company of Kansas City, Mo., for sale, but before any sale was made the commission company was served with notice of garnishment.

Contention is made that under the statutes of Kansas the legal title to' mortgaged personal property is in the mortgagee, and since the mortgage in question was executed in Kansas, its legal effect must be determined by the statutes of that state.

The difficulty with this contention is that the statutes of Kansas are neither pleaded nor proven. We cannot take judicial notice of them. Mathieson v. St. Louis & S. F. By. Co., 219 Mo. 542, 118 S. W. 9; Coleman v. Lucksinger, 224 Mo. 1, 14, 123 S. W. 441, 26 L. R. A. (N. S.) 934. Kansas not being a state in which we are authorized to indulge the presumption that the common law prevails, we must hold that the laws of this state govern the interpretation of the mortgage in question. Witascheck v. Glass, 46 Mo. App. 209, 215.

Appellant's second contention is that as title to the mortgaged property was in the mortgagee, the mortgagor and the commission company, garnishee, were acting as agents of the mortgagee in the shipment and sale of the sheep, therefore the principal's property could not be attached by a creditor of the agent.

There is no merit in this contention, because under the law of this state, which is controlling in this case, the title to the mortgaged sheep was not in the mortgagee.

The rule in this state is that a chattel mortgage creates a lien on the property pledged, and the legal title as well as the right of possession to the property covered by the mortgage, before condition broken, is in the mortgagor. Olean Milling Co. v. Tyler, 208 Mo. App. 430, 235 S. W. 186, 187. No showing is made that any of the conditions of the mortgage were broken or that the mortgagee took or attempted to take the sheep from the possession of the mortgagor. On the contrary, he consented that the mortgagor might ship the sheep to Missouri for sale, and permitted the mortgagor to ship them in his own name. The mortgagor, before condition broken, having both the legal title and possession of the sheep, could legally sell them without the consent of the mortgagee, subject, of course, to the rights of the mortgagee. The mortgagee's consent does not go to the authority of the mortgagor to sell, but to the waiver of the lien.

It is contended that the mortgagee's consent to the removal of the sheep from Kansas, the situs of the mortgage, did not waive the lien. Authorities from other jurisdictions are cited in support of this contention. Cobb v. Buswell, 37 Vt. 337; Shepard v. Hynes (C. C. A.) 104 F. loc. cit. 452, 52 L. R. A. 675; Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S. W. 320, 3 Ann. Cas. 108; Armitage-Herschell Co. v. Potter, 93 Ill. App. 602; Handley v. Harris, 48 Kan. 606, 29 P. 1145, 17 L. R. A. 703, 30 Am. St. Rep. 322; In re Shannahan v. Wrightson Hardware Co., 2 W. W. Harr. (Del.) 37, 118 A. 599 (1922); Flora v. Julesburg Motor...