Auld v. Travis

• Decision Date: 11 February 1895
• Citation: 5 Colo.App. 535,39 P. 357
• Parties: AULD et al. v. TRAVIS.
• Court: Colorado Court of Appeals

39 P. 357

5 Colo.App. 535

AULD et al. v. TRAVIS.

Court of Appeals of Colorado

February 11, 1895

Appeal from district court, Saguache county.

Bill by Dewitt C. Travis against W.T. Auld and others for an injunction. From a judgment and decree for plaintiff defendants Auld and McCorkle appeal. Reversed.

On the 19th day of October, 1892, appellee, Charles E. Quincy, and W.F. Reed, by a written agreement, became partners, for purchasing, feeding, handling and marketing cattle, for a term of five years. Appellee, a ranchman, leased to the partnership, for the purpose of pasturage, three tracts of pasture land, aggregating about 5,700 acres. By the terms of the contract, appellee was to furnish the land as his contribution to the capital of the firm, free of rent and charge. Quincy agreed to furnish as many cattle as could be handled profitably, at the market price of cattle, take entire charge of the cattle, and manage the entire business including the employment of assistants, the purchase of new stock, and the sales of cattle. Reed was to furnish the money necessary for current expenses of the partnership, not to include to the purchase of cattle; the profits of the business to be divided equally between the three partners. Pursuant to such agreement, on the 21st of October, Quincy brought to the ranch of Travis 603 head of cattle, and placed them on the fields designated in such contract. On October 28th he brought other 444 head of cattle, and disposed of them in like manner. On the premises set apart upon the contract, Travis had cut and stacked a quantity of hay estimated at 400 tons. Such hay was measured by Travis, and turned over by him to Quincy for the use of the partnership, for which he was to receive pay proportionately from his partners, at the rate of $4.50 per ton, for so much as was used. Upon measurement there was found to be about 280 tons, all of which was fed to the stock. Under the contract, Quincy took entire control of the supervision, management, and feeding of the cattle, employing and controlling all help. Travis turned over the possession of the different tracts of land designated, and the hay, but exercised no control or supervision whatever. The cattle were bought by Quincy from appellants, Auld and McCorkle, upon credit, and a chattel mortgage was executed by him to secure the purchase price. On the 16th of March following it is alleged the cattle were attached as the property of Quincy on a writ from Arapahoe county. Thereupon, under the provisions of the mortgage, appellants took possession of the cattle or, being about to take such possession and remove them appellee brought this action, alleging in his complaint: (1) That he was a ranchman; that on October 21 and 28, 1892, Quincy brought to his ranch, and intrusted to him for the purpose of feeding, pasturing, and keeping, the 1,047 head of cattle; that the cattle were by him, as agistor, pastured and kept until the 17th of March, 1893, and that the pasturage was worth $1,534.40; that from and after December 3, 1892, he, at the special instance and request of Quincy, fed the cattle 280 tons of hay owned by himself, for which Quincy agreed to pay him $4.50 per ton, amounting to $1,260. (2) That defendants Auld, McCorkle, and Hall were about to take the cattle from his possession by virtue of two chattel mortgages given by Quincy to Auld. (3) That the mortgages were not recorded in Saguache county at the dates the cattle were delivered to him. (4) That at the time of receiving the cattle he had no notice, constructive or otherwise, of the existence of the mortgages. (5) That the taking away of the cattle would deprive him of his lien as agistor, etc. Prayed an ex parte injunction, and asking that his lien be declared superior to any other lien, etc. On March 18th an injunction was granted on a bond of $400, and summons and writ of injunction served the same day upon McCorkle and Hall. There was no service upon Quincy or Auld. On April 6th, Auld, McCorkle, and Hall answered, denying that the cattle were ever instructed to the plaintiff for the purpose of feeding, pasturing, and keeping, or for any purpose; that plaintiff had kept and pastured the cattle as an agistor or in any capacity; that plaintiff fed any hay to the cattle, or that the hay was the property of the plaintiff; admitted that the cattle were pastured upon the land described, etc. For a second defense, set up that Quincy wished to purchase cattle upon time; exhibited, as inducement, the articles of partnership between Travis, Reed, and himself; that the purchase price of the cattle was agreed upon; that McCorkle went with Quincy to plaintiff's lands, and examined them, with a view of ascertaining the relation of the parties to the agreement, and their ability to care for the cattle; that plaintiff declared himself a member of the partnership, and represented that all the lands, and the hay upon them, were to be used exclusively for keeping the cattle; that, relying upon the representations made, the cattle were sold, notes taken, secured by chattel mortgages, which also embraced the hay, which had been sold by the plaintiff to Quincy; that the plaintiff had actual and constructive notice of the mortgages, and that they were duly recorded; that, immediately upon placing the cattle on the premises, cattle and hay were given up to the charge and possession of Quincy, and that during all the time Quincy had open, exclusive, and undisputed possession; that plaintiff had no possession nor rights, except under the contract, etc.; that in February and March, 1893, plaintiff, in violation of his contract, did claim an agistor's lien upon the cattle, and threatened to hold them as against the mortgages; alleged the suing out of the attachment against Quincy and the levy; and admitted the taking of the possession under the chattel mortgages. On March 27, 1893, the court overruled a motion to dissolve the injunction, but increased the bond to $2,500. Afterwards, by stipulation of parties, the injunction was dissolved upon payment by defendants into court of $1,534.40, and the giving of a bond in the sum of $1,400, for the benefit of the plaintiff, in case he obtained final judgment. Subsequently a trial was had to the court, resulting in the following finding and judgment: "Wherefore it is ordered by the court that plaintiff's lien as agistor be, and is hereby, decreed a superior lien to lien of defendants' mortgages, or any other lien of defendants; and the court having found that there is due and owing plaintiff by defendants Auld and McCorkle the sum of $1,721.70, by reason of the premises,--therefore it is ordered and adjudged by court that plaintiff do have and recover from said defendants Auld and McCorkle the sum of $1,721.70, with costs, and that the $1,534.40 deposited by defendants with clerk hereof be applied to satisfaction of said judgment; and the bond of defendants given to secure any judgment in this cause is declared in full force and effect,"--from which an appeal was prosecuted to this court.

John S. Mosby, Jr., and F.W. Lineau, for appellants.

Chas. D. Jones, McIntire & McDonald, and Emerson J. Short, for appellee.

REED, J. (after stating the facts).

Our statute giving a lien to an agistor is as follows (2 Mills' Ann.St. § 2854; Gen.St. § 2118; Amended Acts 1889 232): "Any ranchman, farmer, agistor, herder of cattle tavern keeper, livery-stable keeper, or other person to whom any horses, mules, asses, cattle, sheep or hogs shall be intrusted for the purpose of feeding, herding, pasturing, keeping or ranching, shall have a lien upon such horses, mules, asses, cattle, sheep or hogs, for the amount that may be due for such feeding, herding, pasturing, keeping or ranching, and for all costs incurred in enforcing such lien." The suit was brought under this section of the statute to secure and enforce a lien upon the cattle for the food consumed. " 'Agistment' is where a person takes in and feeds or depastures horses, cattle, or similar animals upon the land for reward." The lien for agistment is purely statutory; no lien existed at common law. Chit.Cont. 435; 1 Smith, Lead.Cas. 222; Jackson v. Cummins, 5 Mees. & W. 341; Smith v. Cook, 1 Q.B. Div. 79. The agistor had no lien except by special agreement. Goodrich v. Willard, 7 Gray, 183; Miller v. Marston, 35 Me. 155; Grinnell v. Cook, 3 Hill, 485. The language of our statute giving the lien is: "The person to whom any *** cattle *** shall be intrusted for the purpose of feeding, herding, pasturing, keeping or ranching," etc. The lien is for the food and care expended upon the cattle of another, where the cattle are intrusted to his care. They must be delivered into his possession, and subject to his control, and the bailment is such, and his possession so exclusive, that he may maintain trespass or trover against a wrongdoer for any injury to their possession (Story, Bailm. § 443; Sutton v. Buck, 2 Taunt. 309; Rooth v. Wilson, 1 Barn. & Ald. 59; Burton v. Hughes, 2 Bing. 173); and is only responsible for ordinary negligence (Jones, Bailm. 91, 92; McCarthy v. Wolfe, 40 Mo. 520). The complaint makes a case clearly within the law of agistment, entitling, if sustained by evidence, the plaintiff to the lien: That, from October 21st and 28th until December 3d, Travis, as agistor, had pastured the cattle; "that from and after the last date, and until March 17, 1893," at the special instance...