Barnard State Bank v. Lankford

• Decision Date: 17 December 1928
• Docket Number: No. 16238.,16238.
• Citation: 11 S.W.2d 1084
• Court: Missouri Court of Appeals
• Parties: BARNARD STATE BANK, RESPONDENT, v. WILEY LANKFORD, ET AL., APPELLANTS.<SMALL><SUP>*</SUP></SMALL>

11 S.W.2d 1084

BARNARD STATE BANK, RESPONDENT, v. WILEY LANKFORD, ET AL., APPELLANTS.^*

No. 16238.

Kansas City Court of Appeals. Missouri.

December 17, 1928.

Appeal from the Circuit Court of Nodaway County. — Hon. John M. Dawson, Judge.

REVERSED AND REMANDED.

A.F. Harvey for respondent.

Wright & Ford for appellants.

BLAND, J.

This is an action in two counts; the first, for conversion of one thousand five hundred sixty bushels of corn and the second, for money had and received, both being on account of the same transaction. The case was submitted by plaintiff to the jury under the count for conversation, resulting in a verdict in favor of plaintiff in the sum of $1014 and defendants have appealed.

The facts show that on March 7, 1925, one Hanson was a tenant on what is known as the Roswell farm, consisting of two hundred forty acres lying west of the town of Barnard in Nodaway county, and on that day he executed a promissory note in the sum of $5000 to plaintiff, payable upon demand, and bearing seven per cent interest from date. The note was secured by chattel mortgage of that date and duly recorded on March 11, 1925. This mortgage recited that it covered —

"... an undivided one-half interest one hundred ten acres corn and fifty acres oats being planted on home farm Sec. 32, Twp. 62, Rg. 35. One hundred and ten acres corn and fifty acres oats on Roswell farm Sec. 35, Twp. 62, Rg. 36, the same being located on the Peter Hanses farm."

No question arises in this suit in reference to the corn raised upon the "home" farm where Hanson resided but only that corn upon the Roswell farm. There was no corn on the Roswell farm at the time the mortgage was executed. The crop grown thereon during the season of 1925 was not planted until about the last of April or first of May of that year. According to plaintiff's evidence, one hundred four acres of corn were raised on the farm in question during the year 1925. According to defendants' evidence one hundred fifty acres were planted and raised.

On June 25, 1925, Hanson executed to defendant, Lankford, a chattel mortgage, recorded on September 13, 1925, describing forty acres of corn which, according to defendants' evidence, was intended to mortgage forty acres of growing corn on the Roswell farm not covered by plaintiff's mortgage. Lankford's mortgage was given to secure Hanson's note to Lankford in the sum of $4103.29. The note was payable upon demand and bore eight per cent interest from date. It seems to be conceded that the Lankford mortgage is void for the reason that it did not properly describe the land upon which the corn was being grown. These defendants are not claiming any rights under this mortgage.

Hanson testified that at the time the note was given to Lankford he informed the latter of the bank's mortgage and told him, "I don't know if they (the Lankford note and mortgage) would hold good or not, that he (Lankford) would have to stand his own chances. I would not sell it, that he would have to take his own chances of hauling it ... he would have to run his own risk of taking the corn and stand a lawsuit with Barnard State Bank if he took the corn." Lankford admitted that at the time he took his mortgage he had examined the records and found plaintiff's mortgage but found it covered only one hundred ten acres of corn.

The corn grown by Hanson on the Roswell place was harvested in November and December, 1925. About the time it was gathered Hanson went to the bank and stated that he had "no place to crib his corn, no money to provide cribs," so the bank furnished the lumber for the floors of the cribs and wire for the sides and directed Hanson to "crib it" (the corn). Part of the corn was cribbed in the barn upon the premises and when that was full the remainder was put in wire cribbing, consisting of three or four cribs. At the time the cribbing was furnished, an agreement between plaintiff and Hanson was made that —

"... the corn was to remain there until either us or he (Hanson) should find a buyer for it and if he found a buyer for the corn he was to submit the price to us at the bank and if agreeable, we would consent to the sale of it."

In the meantime the bank was attempting to find a purchaser. It, in fact, sold a small amount of the corn to one Messick and the corn was delivered to Messick by Hanson. Before the rest of the corn could be sold, an officer of the bank found that a large part of the corn (including the corn in controversy) had been removed.

Lankford testified that about the first of March, 1926, he purchased some of the corn on the Roswell place from Hanson for which he was to pay Hanson the market price; that in December, 1925, or January, 1926, he had sold twenty-five hundred bushels of corn to the defendant Flemming; that he purchased the corn from Hanson for the purpose of fulfilling in part his contract with Flemming; that he bought of Hanson the corn in the south crib or the one "next to the hog house;" that he procured one Cox to haul the corn to the farm of the defendant, Flemming, or the defendants, the Cunninghams; that Cox hauled one thousand fourteen bushels and twenty pounds to said farm and two hundred eighty-nine bushels and thirty pounds to Lankford's place; that Lankford employed and paid Cox to haul this corn and that he procured the corn out of the crib last mentioned and from the bottom of two other cribs; that Lankford directed Cox where to get the corn. Lankford testified that Hanson asked him if "he would not clean that up," that is, the corn in the "two bottoms," being some corn in the bottom of two of the other cribs. All of this corn was hauled between April 19 and 22, 1926. There was evidence on the part of plaintiff that the south crib next to the hog house held about one thousand bushels. Lankford testified that he did not pay Hanson cash for the corn but gave the latter credit upon his note for one thousand three hundred three bushels of corn at sixty-five cents a bushel. The endorsement upon the note shows that this credit was made May 1, 1926.

Hanson testified that he did not sell Lankford any corn; that he did not know when Lankford had the corn hauled from the Roswell place and did not know how much he had hauled away. However, he testified that he raised one hundred fifty acres of corn on the Roswell place, gathered the corn which Lankford's mortgage was supposed to cover, and stored it in the south crib near the hog house.

On April 19, 1926, the defendant, Flemming, who was in partnership with defendants, the Cunninghams, in the stock raising and feeding business, made an agreement with Hanson to purchase all corn then on the Roswell place, estimated at three or four thousand bushels. Of this amount four hundred eighty-six bushels and sixty pounds were delivered to the partnership by Hanson through his agent, McGinnis. This arrangement was made without the knowledge or consent of plaintiff. The purchase price of the corn was sixty-five cents a bushel, but it seems that this corn was never paid for. There is no evidence as to when payment was to be made. Hanson employed one McGinnis to haul this corn and the latter hauled it about the first of May, 1926. He hauled six loads, obtaining the first four loads out of the wire crib southwest of the barn and the balance from the barn. Hanson directed him to haul the corn and he was paid for the hauling by Flemming "by order of Mr. Hanson." Hanson thought the hauling was costing him too much and said that he would personally haul the corn during the summer by a more direct route. For some reason no more corn was hauled to fill this contract. McGinnis testified that as far as he knew Lankford had nothing to do with the transaction between Hanson and Lankford's co-defendants.

On the 3rd of April, 1926, Hanson executed another chattel mortgage to plaintiff to secure the same debt covered by the chattel mortgage dated March 7, 1925. The 1926 mortgage recited that it covered, among other things, "Five thousand bushel yellow corn cribbed in barn and three round cribs on Roswell farm in Sec. 35, Twp. 62, Range 36, Nodaway county, Missouri, subject to $1000 rental." This mortgage was duly recorded on May 14, 1926, after all of the corn in question came into the possession of defendants.

Plaintiff states in its brief that this suit is not to recover for any part of the corn delivered to Lankford to his place but for the corn sold by Lankford to his co-defendants and delivered to them and the corn sold by Hanson to Lankford's co-defendants. There was no question raised at the trial by defendants as to any misjoinder of parties defendant but plaintiff admits that it is not entitled to recover as against Lankford for the alleged conversion by his co-defendants of the four hundred eighty-six bushels and sixty pounds of corn sold by Hanson to Lankford's co-defendant unless Lankford aided and assisted his co-defendants in the conversion of the last-mentioned corn, and plaintiff claims that there is evidence of joint conversion of this corn by all of the defendants. In pursuance of this theory plaintiff procured the giving of its instruction No. 2 which told the jury, among other things, that —

"Flemming and Cunninghams would not be liable for the corn delivered to them by Lankford, or Lankford liable with them for corn delivered or caused to be delivered through Hanson or his truck driver unless they were aiding or assisting each other or jointly acting in converting such corn, if any, if you find from the evidence that any corn covered by plaintiff's mortgage was so converted and that plaintiff's mortgage covered such corn and there was not more than one hundred ten acres of corn grown on said Roswell farm in 1925."

It is insisted by the defendants that the giving of this instruction was error and we think there is no question but that it was. There is no evidence of any joint conversion of the four hundred eighty-six bushels and sixty pounds that went...