Alter v. Bank of Stockham

• Decision Date: 03 June 1897
• Docket Number: 7189
• Parties: ISAAC R. ALTER ET AL. v. BANK OF STOCKHAM ET AL
• Court: Nebraska Supreme Court

71 N.W. 715

51 Neb. 797

ISAAC R. ALTER ET AL. v. BANK OF STOCKHAM ET AL

No. 7189

Supreme Court of Nebraska

June 3, 1897

ERROR from the district court of Hamilton county. Tried below before BATES, J. Affirmed.

AFFIRMED.

Hainer & Smith, for plaintiffs in error.

A. W Agee and H. M. Kellogg, contra.

RYAN C. HARRISON, J., dissenting.

OPINION

RYAN C.

This action was begun in the district court of Hamilton county by Isaac R. Alter and Herbert H. Glover as plaintiffs, doing business under the firm name and style of Alter & Glover. The Bank of Stockham was the sole defendant. It was alleged in the petition that plaintiffs, on September 26, 1889, had sold to Bernhard and Herman Wiens 309 steers at the agreed price of $ 8,500; that a note had accordingly been given on that day, by its terms due six months thereafter; that to secure the payment of said note the makers thereof had executed to plaintiffs a chattel mortgage; that said mortgage had been duly filed for record; that when said note fell due it had not been paid, and that at the time this suit was brought there was still unpaid on said note the sum of $ 1,606.05, with ten per cent per annum interest thereon from May 21, 1890. It was further alleged in the petition that on October 28, 1889, Bernhard and Herman Wiens had mortgaged said cattle to the defendant, the Bank of Stockham; that in the mortgage last named the priority of plaintiffs' mortgage was recognized by the recitation in said mortgage to the bank that "all of the above steers have a previous mortgage on them;" that on March 10, 1890, Bernhard Wiens had executed another mortgage to the bank upon 140 of said cattle, wherein plaintiffs' mortgage was referred to in this language: "Second mortgage on 140 head of steers now fattening in my yards." It was alleged that the mortgages to the bank were given and taken without the consent of the plaintiffs, and with full knowledge of the rights of the plaintiffs. There was alleged in the petition three several sales of the cattle covered by plaintiffs' mortgage, one of which was of 41 head of steers on January 8, 1890, another of 127 head on March 8, 1890, and the third of 141 head on May 21, 1890. This action was to recover from the bank the amount above alleged to be due from Bernhard and Herman Wiens to plaintiffs. It is necessary to consider only one of the sales, for the allegations as to all the sales were, as to our purpose, practically in the same language. The averments as to the first sale were in this language: "On or about January 8, 1890, the said defendant bank, although having full knowledge of plaintiffs' right in and to said steers, and that no part of the sum secured by plaintiffs' mortgage had been paid, took possession of 41 head of said steers so mortgaged and belonging to said plaintiffs, and shipped the same to Martin Bros., commission merchants at Omaha, Nebraska, and caused to be sold the entire interest in said steers without regard to plaintiffs' mortgage thereon, on account of said Bernhard Wiens in the name of B. Wiens, for the net sum of $ 1,330, after deducting all charges for commission, freight, and other charges, which net proceeds, to-wit, $ 1,330, were by said Martin Bros., under the direction of the defendant bank, deposited to...