Bowles Livestock Commission Co. v. Midland Nat. Bank of Billings

• Decision Date: 14 June 1933
• Docket Number: 7068.
• Citation: 23 P.2d 967,94 Mont. 467
• Parties: BOWLES LIVESTOCK COMMISSION CO. v. MIDLAND NAT. BANK OF BILLINGS.
• Court: Montana Supreme Court

23 P.2d 967

94 Mont. 467

BOWLES LIVESTOCK COMMISSION CO. v. MIDLAND NAT. BANK OF BILLINGS.

No. 7068.

Supreme Court of Montana

June 14, 1933

Rehearing Denied July 19, 1933.

Appeal from District Court, Yellowstone County; O. F. Goddard Judge.

Action by the Bowles Livestock Commission Company against the Midland National Bank of Billings, a corporation. Judgment for defendant, and plaintiff appeals.

Judgment reversed, and cause remanded, with directions.

Brown Wiggenhorn & Davis, of Billings, for appellant.

Wood & Cooke, of Billings, for respondent.

ANDERSON Justice.

The plaintiff corporation brought this action, for money had and received, against the defendant bank. The complaint was in three counts, each based on the same facts. At the close of the plaintiff's case, on motion of the defendant plaintiff elected to rely on the third count, which stated the facts more in detail than any of the other counts. The defendant, by its amended answer to each of the counts, admitted the receipt of the money and its refusal to repay on demand. The defendant further affirmatively pleaded certain facts unnecessary to relate here, as they later appear sufficiently. The case was tried by stipulation of counsel before the court without a jury, and judgment was rendered for the defendant. No findings of fact or conclusions of law were made.

The plaintiff was a live stock commission firm in Chicago, handling live stock upon commission. Late in December, 1929, and early in January following, one Foulkes, president of the American Sheep Company, a corporation, engaged in the live stock business at Billings, communicated with plaintiff relative to the securing of an advance on lambs to be shipped. The exact scope of this arrangement is unimportant here. These lambs were mortgaged to the defendant bank. On January 14 the American Sheep Company wired the plaintiff, requesting him to telegraph defendant confirming a telephone conversation with reference to the payment of the advances to be made by it. Plaintiff, complying with the request, wired the defendant that it would honor the draft of the American Sheep Company for four or five loads of lambs at 12 cents per pound, less $1.50 per head invoice and copy of railroad contract showing lambs billed to plaintiff to reach it prior to draft. The defendant received the telegram, but gave the matter no attention until on January 28 following, on which date the lambs were delivered to the railway company for shipment and a bill of lading issued to the American Sheep Company and the defendant, at which time the bill of lading was indorsed, "Deliver to Bowles Livestock Com. Co., American Sheep Co., Inc., L. E. Merrick, Secy. The Midland National Bank, Billings, Montana, By E. O. Jenkins, Vice President."

The amount of the draft was computed in accordance with the telegram of January 14, and it was drawn accordingly in the following form:

"Customer's Draft.

The Midland National Bank 93-30

Billings, Montana, Jan. 28, 1930.

At sight pay to the order of The Midland National Bank of Billings, Montana, $11,598.90, Eleven thousand, five hundred ninety-eight and 90/100 Dollars, with exchange

Value received and charge to account of

American Sheep Co., Inc.

L. E. Merrick, Secy.

To Bowles livestock Comm. Co., Union Stock Yards, Chicago, Illinois." On the same date the president of defendant bank advised plaintiff by mail of the shipment of the lambs and requested that plaintiff honor the draft promptly. The draft was presented to plaintiff through a correspondent bank of the defendant in Chicago, to whom it was paid by plaintiff. Defendant in turn gave credit for the amount of the draft on the indebtedness of the American Sheep Company secured by chattel mortgage on the lambs. The amount so applied left a substantial balance owing by the American Sheep Company to the defendant. As to whether this remaining indebtedness was secured in whole or in part the record is silent.

The president of the defendant bank testified on the trial that he knew the lambs were being shipped for the purpose of being in turn sold by plaintiff as a commission house; their profit being the commission they could derive by the transaction. The purpose, as testified to by the officers of the defendant bank, in having its name appear on the bill of lading was to advise the consignee of its interest in the property by reason of their chattel mortgage.

On February 11 defendant wrote to plaintiff as follows: "O. B. Parham, c/o Bowles Livestock Commission Company, Chicago, Illinois: Dear O. B.: Foulkes tells me that he talked to you this morning relative to the five loads of lambs shipped by the American Sheep Company and the two and one-half loads shipped by Sinton and that two loads will be on the market today, two more Thursday and then the balance moved out daily thereafter, in other words, the entire lot should be sold within the week. I trust that will be done. As Foulkes informed you, we are the parties interested in the proceeds. The sheep are mortgaged to us. Yours very truly, Elroy H. Westbrook, President."

Plaintiff in response to the above letter on February 14 following telegraphed defendant: "Midland National Bank, Billings, Mont. Letter and wire just received Double and single old ewes only sold the way I understood last conversation with Foulkes lambs were to be given ten days or two weeks feed as are only feeders would probably bring around ten and quarter if you wish sold without further feed please wire. Bowles Livestock Comm. Co."

Defendant on February 20th telegraphed plaintiff as follows: "Bowles Livestock Commission Co. Attention Mr. Parham. Kindly move all sheep not yet sold under the two drafts recently drawn to market at earliest possible moment advising by wire net receipts when this has been done. Midland National Bank."

The Sinton sheep referred to in the letter of February 11 was another shipment not concerned with this transaction, but in which the defendant was interested, having a chattel mortgage on the same. The additional draft mentioned in the telegram of February 20 was in connection with the Sinton shipment.

The price suggested in the telegram of February 14 was insufficient to pay the amount of the advance made by the draft. Plaintiff in accordance with the instructions sold the lambs and advised defendant of the results of the sale on February 21. The lambs brought a somewhat better price than was predicted by plaintiff, but nevertheless, after deducting the freight and other necessary expenses of the transaction, about which there is no controversy, the amount of the draft paid by plaintiff as an advance exceeded the net returns of the sale by $2,217.08, which is the amount which plaintiff sought to recover in this action. The plaintiff insisted that in making the advance it understood that the lambs were to be fat lambs and as such would have brought a better price on the market, and that it was their advice to continue feeding them at Montgomery, Ill., where they were being fed at the time the peremptory order of the defendant to sell them was received.

One of the officers of the defendant bank testified that the reason for sending the telegram of February 20 was that Foulkes, the managing head of the American Sheep Company, was ill, but with whom he consulted, and that Foulkes was of the opinion that, in view of the trend of the market downward, the lambs should be sold without delay.

Plaintiff specifies numerous errors of the trial court in the admission of evidence, but the chief error on which it relies is "the court erred in entering judgment for the defendant and...