Anthony v. Midwest Live Stock Commission Co.

• Decision Date: 07 March 1924
• Docket Number: No. 23558.,23558.
• Citation: Anthony v. Midwest Live Stock Commission Co., 260 S.W. 94 (Mo. 1924)
• Parties: ANTHONY v. MIDWEST LIVE STOCK COMMISSION CO. et al.
• Court: Missouri Supreme Court

260 S.W. 94

ANTHONY v.MIDWEST LIVE STOCK COMMISSION CO. et al.

No. 23558.

Supreme Court of Missouri, Division No. 1.

March 7, 1924.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

Action by O. L. Anthony against the Midwest Live Stock Commission Company and the Live Stock State Bank.From a judgment of dismissal and a judgment for the bank against plaintiff, the latter appeals.Reversed and remanded.

J. W. Farrar and O. C. Phillips, both of Kansas City, for appellant.

Stubenrauch & Hartz, of Kansas City, for respondents.

JAMES T. BLAIR, J.

Appellant brought this suit to recover for the proceeds of certain cattle to which he alleges he is entitled.Appellant had paid for the cattle, and they were being pastured and fed by Bozemon under an agreement between him and appellant.On December 24, 1920, Bozeman mortgaged the cattle and several thousand dollars worth of feed, for which also appellant had paid, to the George T. Hall Live Stock Commission Company(now, by change of name, the Midwest Live Stock Commission Company) to secure his notes given that company for his personal indebtedness to them on accounts not connected with the cattle in question.The Bozemon notes, so secured, were assigned to the other respondent, the bank, to take up former notes given by Bozemon to the Hall Company, which also had been assigned by it to the bank.When the cattle were sold in 1921 through the Midwest Company it paid over the proceeds to the bank, and the bank applied them on Bozemon's notes.The trial court dismissed the petition and rendered judgment in favor of the bank against appellant for an unpaid balance on the Bozemon notes, and interest, in the sum of $684.68.This appeal followed.

Appellant was 60 odd years of age and lived at Leroy, Kan.For many years he had been a dealer in cattle, hay, grain, and the like, and seems to have accumulated considerable means.At Northcott, in an adjoining county, Bozeman, then about 45 years of age, lived and for about 15 years had been engaged there in dealing in cattle, land, hay, and grain.He owned a store also which he had put in charge of another.He had accumulated considerable property and was apparently prospering.He and appellant had been acquainted for some time.Appellant had become somewhat less active on account of impaired health.For several years Bozeman had dealt with the George T. Hall Live Stock Commission Company, and in the spring of 1920 was indebted to it on account of previous transactions.It appears that appellant knew nothing of this.In March, 1920, Bozemon, on his own account, bought from that company 178 head of cattle on which he gave it a chattel mortgage to secure his note for $11,885 to cover the purchase price.

About this time or soon thereafter appellant and Bozemon united in purchasing hay, for profit, in that section.They bought and sold several hundred tons.In the course of these transactions their attention was attracted to cattle which came under their notice, and they got the idea that profit could be made out of handling cattle, particularly cows and young stuff, through the summer.Bozemon owned several tracts of land and had control of others which were available for pasturage.Finally, appellant suggested that he would furnish money to buy cattle, and, if Bozemon would furnish pasture and look after them, the venture could be, made that way.The arrangement was that out of the proceeds appellant should first be repaid the money advanced and the profits would be divided equally.It was arranged that Bozeman, when he bought under the agreement, should check on the First National Bank of Leroy, where appellant transacted his banking business, and that the bank would charge Bozeman's checks of this kind to appellant's account.The bank was notified of this arrangement and of the plan of which it was a part and agreed to and did carry out its part of it.

The first purchase in furtherance of the joint enterprise was made by Bozemon when, on June 22, 1920, he bought 37 head for $1,890.72 from the George T. Hall Live Stock Commission Company and drew his draft therefor on the First National Bank of Leroy, as agreed.On its receipt at Leroy, the bank there paid the draft and charged the amount to appellant, as agreed.On June 24, 1920.Bozemon bought from the same company 35 head, and payment was made for them in substantially the same way.The amount paid by appellant for this load was $1,448.96.August 5, 1920, Bozemon bought another lot of 54 or 55 from the same company, and appellant paid for them in the same way—$1,600.99.September 5, 1920, appellant bought at Wichita and turned over to Bozeman 46 head for which he paid $1,917.72 by draft on the Leroy Bank.September 23, 1921, appellant purchased 5 head from Powers and gave his check for them in the sum of $165, and put them in Bozemon's possession.September 28, 1920, Bozemon bought from the George T. Hall Commission Company 44 head for $1,565.46, and drew his check on the Leroy bank as before.This was charged to appellant's account.October 6, 1920, Bozemon bought from the same company 72 head for $2,675.38, and gave a check on the Leroy bank to cover, which was charged to and paid by appellant.On this same day Bozemon gave his three notes to the George T. Hall Live Stock Commission Company, aggregating $8,660, due December 5, 1920, and executed a mortgage on 108 cattle, several mules and horses to secure these notes.These notes represented the unpaid balance of personal indebtedness of Bozemon growing out of the purchase by him of 178 cows on March 26, 1920, and a balance theretofore accrued out of previous transactions which had been concentrated in a note of $4,878, dated April 5, 1920, to secure which (this last) Bozemon had given a mortgage on 42 cattle, 12 mules, and 14 horses.

During the fall of 1920, prior to October 6th, shipments by Bozemon, of his own cattle, had reduced the aggregate of his own notes and other debts to the Hall Company to the $8,660 represented by the notes of October 6th.Bozemon's mortgage of October 6th to the Hall Company does not cover any of the cattle he bought on that day or had bought previously under his arrangement with appellant; nor did any other mortgage he had given theretofore include any of them, though all he bought under that arrangement, except one bull, he bought from the Hall Company.The Bozemon notes of October 6th were discounted with respondent bank.Some of the checks he gave in payment of cattle bought for which appellant paid went through the respondent bank.This was true of the check of October 6th.On October 16, 1920, Bozemon sold to appellant 20 cows for $1,437.80, and on the same day appellant paid him $60 for a bull he had bought.November 18, 1920, appellant bought from Crider Bros. Commission Company 38 cattle and Paid $1,336.83 therefor, and these were shipped to Bozemon and put with the others bought under the agreement.In addition, appellant had bought locally small lots, aggregating 20 odd head, and had paid for them, and these were turned over to Bozemon and put on pasture, as agreed.During the fall the state of the market was such that appellant and Bozeman were convinced it would be better to feed out part or all the cattle collected, and in September and October there was bought $2,461 worth of cotton seed cake, and during those months and November, in the vicinity of Northcott, nearly $2,800 worth of corn.Most of the purchases were made by Bozeman, and his checks Were charged to appellant by the Leroy bank, as agreed.

The aggregate of the payments made by appellant for cattle under the arrangement between him and Bozemon was $14,250.46.Credits reduced this to $12,686.71.The total paid by appellant for feed was $5,257.11.His net expenditure was $17,043.82.December 5, 1920, Bozemon's notes of October 6th to the Hall Company, secured as stated, and discounted and held by respondent bank, became due.Appellant, as stated, knew nothing about this indebtedness of Bozemon, and, in fact, was so confident of Bozemon's solvency that he had loaned him on other accounts $25,800.Cattle had gone down.Bozemon had lost about $2,500 on the March 26th purchase of cattle on his own account, he says.The market was not good on the 1st of December for the kind of cattle he was handling, whether for himself or under the arrangement with appellant.He presented this argument to the Hall Company, and it undertook to aid him in securing a renewal of the notes due December 5th.Mr. Staley, of the Hall Company, testifies he called at respondent bank and took up with them the question of renewing Bozemon's paper.He and the cashier testify that the bank was reluctant to hold the paper without additional security.The cashier says that George T. Hall was the man of means in the Hall Company(a corporation), and that he was about to retire from the company, and that the bank was unwilling to carry the loan, secured as it was, though indorsed by the Hall Company, with that company about to lose Hall from among its officers and stockholders.Staley says he asked Bozemon what security he could give, and Bozemon offered the 318 cattle he had on his place.The upshot of the matter was that Staley and the cashier of respondent bank, in December, 1920, went down to Bozemon's place.Bozemon executed notes in lieu of the $8,660 notes secured by his mortgage of October 6th, and gave to the Hall Company a mortgage on the 318 cattle he had in possession under his agreement with appellant.The bank required Staley's personal indorsement in addition to that of the Hall Company, and Staley, at the same time, required Bozemon to give him a deed to 320 acres of land to indemnify him against loss on his indorsements of the Bozemon notes.The equity in this tract was worth $8,000 according to Staley.Appellant had no word of these transactions.Respondents say they knew nothing, of Bozemon's arrangement...