Bank of Odessa v. Jennings

• Decision Date: 06 July 1885
• Citation: 18 Mo.App. 651
• Parties: BANK OF ODESSA, Respondent, v. JAMES H. JENNINGS, Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 651

BANK OF ODESSA, Respondent, v. JAMES H. JENNINGS, Appellant.

Court of Appeals of Missouri, Kansas City.

July 6, 1885

APPEAL fro Lafayette Circuit Court, HON. JOHN P. STROTHER, J.

Reversed and remanded.

Statement of case by the court.

This suit is brought to recover damages sustained by plaintiff on account of the conversion by defendant of certain described cattle, alleged to be the property of plaintiff. The petition alleges that one Stephen W. Couch on the 21st day of July 1881, " by his certain mortgage deed of that date sold assigned, transferred and set over to plaintiff twenty head of native two-year-old steers, etc., etc." and that on the 30th day of July, 1881, said Couch " by his certain other mortgage deed sold, assigned, transferred and set over twenty head of Kansas native steers, and four-year-olds bought of J. C. Cobb on the 30th day of July, 1881, and that defendant converted to his own use sixteen of the native steers and four of the Kansas native steers."

In his answer the defendant denied generally the allegations of the petition except such as were admitted, and alleged that the plaintiff converted to its own use four native beef cattle, the property of defendant, for the value of which with interes the asked judgment. Another defence in the answer, on which no point is made here, it is unnecessary to notice.

The plaintiff introduced in evidence the two chattel mortgages pleaded in the petition. The description is one mortgage was " twenty head of two-year-old steers," and in the other mortgage was " twenty head of Kansas native steers, three and four-years-old (bought of J. C. Cobb, on the 30th of July, 1881)." In both mortgages it was provided that the property should remain in the possesion of Couch, the mortgageor, and that the mortgagee might take possession of said property upon the removal or an attempt at removal thereof from Lafayette county. The defendant objected to the introduction of the first named mortgage in evidence for the reasons that it was irrelevant and incompetent, and that as to the twenty head of native two-year-old steers it was void for uncertainty, and conveyed as to said cattle no title to plaintiff. The objection was overruled by the court.

Attached to each mortgage there was an affidavit, subscribed and sworn to by the said mortgageor, Couch, to the effect that he was the legal and absolute owner of the property described in the mortgage. The plaintiff offered the affidavits in evidence. The defendant objected to the introduction of them in evidence for the reason that they were, as evidence, incompetent, irrelevant, and hearsay. The objection was overruled, and the affidavits were read in evidence by the plaintiff.

John A. Price testified, for plaintiff, that on May 27, 1881, he sold Couch the twenty head of native two-year-old steers, that he made the sale to Couch, that he knew no one else than Couch in the trade. He did not know whether Couch was buying for himself or Jennings. This was the tendency and effect of his testimony. He also testified that he helped Couch drive and place the cattle in the pasture of one Whitsett, in Lafayette county. The evidence introduced for plaintiff tended to show that Couch as owner of the cattle in controversy executed the two mortgages, that the plaintiff in good faith dealt with Couch as such owner, supposing him to be such; that Couch had no other cattle than the cattle in suit, answering the description of the cattle mentioned in the mortgages; and that the defendant took from the pasture of the said Whitsett sixteen of the native two-year-old steers, and four of the Kansas native steers and converted them to his own use. It was testified by John C. Cobb, president of the plaintiff, that it got the remaining four of the twenty native two-year-old steers. For defendant no claim was made to the four Kansas steers taken by him. They were the property of plaintiff. Evidence was introduced by defendant tending to show that Couch was insolvent, that the defendant was a farmer and handler of stock. That defendant employed Couch to rent for him a certain pasture in Lafayette county from one Whitsett, the rent for which defendant paid, and that defendant also employed Couch to purchase from one Price the native cattle in controversy for the sum of six hundred dollars, and to place them when bought in the Whitsett pasture, and for that purpose defendant supplied Couch with six hundred dollars. That Couch bought the cattle on May 27, 1881, and paid for them with defendant's money and placed them in the said Whitsett's pasture. In whose name the pasture was rented does not appear in evidence, but after Couch's death the defendant completed payment of the rent for the pasture. The receipts for the rent were introduced in evidence, but having been omitted from the bill of exceptions, it does not appear from whom they acknowledged payment. That the defendant did not know that Couch bought the cattle in his own name. And that defendant was ignorant of the fact that Couch had mortgaged the cattle until he was notified of it after Couch's death. That the cattle ran in the pasture with Couch's cattle bought from Cobb, and also with a lot of defendant's cattle. That Couch cared for them and saw that none of them got out of the pasture. That they remained in the pasture until the fall of 1881, when all but four of them and four of the Cobb Kansas native steers were taken from the pasture by defendant as his cattle and converted by him to his own use. That eight of the Price native cattle, so taken were taken in September, 1881, by Couch, by the orders of defendant, and were shipped to Chicago with a lot of defendant's other cattle. That they were in charge of Couch in course of shipment, but were shipped to the care of the defendant's broker in Chicago, and were sold by the broker, who remitted to defendant by draft the amount due him; that under the arrangement between defendant and Couch, the latter for his services was to receive one-half of the net profits realized from the said Price cattle.

This is deemed a sufficient statement of the evidence, although it is somewhat lengthy. There was no other material evidence of the relation existing between the defendant and Couch, than the evidence whose tendency we have just given.

The instructions given and refused were of great number and length, and we have not thought it necessary to set them out herein, as our views of this case will be made plain without so doing.

The jury returned a verdict for the plaintiff and from a judgment rendered thereon the defendant has appealed to this court.

J. D. SHEWALTER, WM. WALKER AND RICHARD FIELD, for the appellant.

I. The petition states no cause of action for two reasons: (1) Being trover (and pleading specially plaintiff's title), it alleged no title in Couch or plaintiff. (2) As to the twenty head of native steers, the mortgage is void for uncertainty. State ex rel, etc., v. Cooper, 79 Mo. 466. Therefore, the court erred in admitting any evidence on the trial.

II. The court erred in refusing and giving instructions and wholly misconceived the law applicable to principal and agent. An agent has no power to mortgage the property of his principal for his own debt. 2 Benjamin on Sales (3 Ed.) p. 956; Benny v. Rodes, 18 Mo. 147; Wheeler, etc., v. Givan, 65 Mo. 89.

III. There was no estoppel in this case. There was no evidence of acts on which to base it. The only evidence of any act of Jennings was in permiting Couch to make the contract--he was not present--and this did not warrant any instruction as to estoppel, and its only effect would be to mislead. No such issue was raised by the pleadings.

IV. Had Couch been in possession of the cattle, yet he would have had no right to sell them, unless from the nature of his employment (as factor) one would be led to suppose he had the right to sell. Marine Bk. v. Fisk, 71 N.Y. 353.

V. Mere possession is not sufficient evidence of title to justify a purchaser in buying property. Couch had really no indicia of ownership. Dows v. Green, 24 N.Y. 638; Case v. Jennings, 17 Texas 661.

RYLAND & RYLAND, A. F. ALEXANDER, for respondent.

I. The petition is strictly correct when tested by the rules of pleading, and presents the legal effect of the mortgage deeds, which was to vest the absolute or general property of the cattle in plaintiff. Bowie v. Kansas City, 51 Mo. 454; Nat. Bk. v. Franklin Co., 65 Mo. 105; Saulsbury v. Alexander, 50 Mo. 142; Berthold v. Ins. Co., 2 Mo.App. 311.

II. The description of the cattle in the mortgage is not ambiguous, nor is it even indefinite. Long v. Wagner, 47 Mo. 179; Howe v. Williams, 51 Mo. 252. And even though the description had been uncertain the defect would be cured by the verdict. Rev. Stat., Mo., sect. 3582; Hog v. Short, 49 Mo. 149; Fraser v. Roberts, 32 Mo. 457.

III. Whenever the legal title to property becomes vested in one person, and the beneficial interest in another, it is a trust, and the cestui que trust is not recognized in common law, but must enforce his right in equity which has exclusive jurisdiction. 2 Story's Eq. Jur. (12 Ed.) 163, sects. 960-964. The legal title to personal property, unaffected by any express trust, invests the holder with power to sell or mortgage as an incident to the title.

IV. The fifth instruction (concerning ownership of property and as to partnership ) given for defendant, contains all that he claimed to be the law, and more than he could legally ask. The seventh instruction asked by him as to agency was properly refused, as not based on the evidence and ignoring the rights of third persons.

OPINION

HALL J.

1. The petition is sufficient. The objection to its sufficiency made by defendant that it...