Brande v. A. L. Babcock Hardware Co.

• Decision Date: 25 February 1907
• Citation: 35 Mont. 256
• Parties: BRANDE v. A. L. BABCOCK HARDWARE CO.
• Court: Montana Supreme Court

35 Mont. 256

BRANDE

v.A. L. BABCOCK HARDWARE CO.

Supreme Court of Montana.

Feb. 25, 1907.

Appeal from District Court, Yellowstone County; C. H. Loud, Judge.

Action by L. L. Brande against the A. L. Babcock Hardware Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Fred H. Hathhorn and Harry A. Groves, for appellant.

W. M. Johnston, for respondent.

SMITH, J.

This action was begun to recover the sum of $504, the alleged value of certain wheat sold by one Farr to the defendant company, upon which plaintiff held a chattel mortgage, of which defendant is alleged to have had notice. At the close of the testimony, the court directed the jury to return a verdict for the defendant, and upon such verdict judgment was entered. From that judgment the plaintiff has appealed to this court.

It appears that on the 29th day of December, 1903, Farr made, executed, and delivered to plaintiff his promissory note, and on the same day, to secure the note, made his chattel mortgage upon the crop to be raised by him in the following year, 1904. This note and mortgage were taken by Austin North, the agent of plaintiff. The plaintiff nowhere appears personally in the action. In the spring of 1904 Farr went to the respondent company to buy seed wheat on credit, which was refused him; but he finally obtained the same by giving a note therefor and signing a contract to sell the crop raised from said seed to the Babcock Company. The form of contract was as follows: “This agreement, made and entered into this _____ A. D. _____, by and between the A. L. Babcock Hardware Company of Billings, Montana, a corporation, the party of the first part herein, and _____, party of the second part, witnesseth: That the parties of the first and second parts have this day mutually agreed and covenanted and do by these presents bind themselves in the manner following; that is to say: First. For and in consideration of the covenants and agreements hereinafter contained to be kept and performed by the said party of the second part, the said party of the first part hereby agrees to sell and deliver _____ to the said party of the second part on demand _____ pounds of No. One hard seed wheat, or so much thereof as may be desired by the said party of the second part, at the rate of _____ per hundred weight. Second. Said party of the second part hereby agrees to sow, cultivate, irrigate, harvest and thresh in a good and farmer-like manner all and singular the hard wheat so to be furnished him as above; and after the said wheat shall have been harvested and threshed as aforesaid, to sell and deliver the same and all thereof so harvested and threshed to the said party of the first part, to be paid for by the said party of the first part at the rate of _____ per hundred weight, f. o. b. cars _____. Third. The said party of the first part hereby agrees to pay to the said party of the second part the sum of _____ per hundred weight for all hard wheat, cultivated, irrigated, harvested and threshed on the premises of the said party of the second part, and which may be delivered f. o. b. cars to the said party of the first part in good condition at any time during the months of _____ A. D. 190_____. In witness whereof, the said party of the first part has hereunto caused its corporate name and seal to be affixed by its proper officers on this _____ A. D. 190_____, and the said party of the second part has hereunto fixed his hand and seal at _____ this _____ day of _____ A. D. 190_____.” The contract was filled in with Farr's name as party of the second part, the number of pounds of seed wheat delivered to him, and the price per hundred ($1.15) that was to be paid for the crop in the fall. One Connolly signed for the company, and North attached his signature after Farr's, either as a party, or as a witness. North also indorsed the note for the seed wheat. He testified: “I was anxious to see the fellow get a crop, and I signed the note personally so that he could get the seed wheat at that time. In my presence, Mr. Connolly agreed to purchase the wheat, and agreed upon the price he would pay for the wheat; that is, the price to be allowed Mr. Farr, and to be paid to me after deducting the amount of the note. *** I signed the contract for the sale of the wheat. I did it as the agent of the mortgagee.” He says that in indorsing the note he did not intend to waive the lien of the mortgage.

At the time of this transaction Connolly was the secretary of the defendant company, acting in the course of his employment, and had knowledge of appellant's mortgage. He says that to induce North to indorse the note, he told him that he (North) had a mortgage and he took no chances in indorsing the note. Connolly ceased to represent the defendant company in August, 1904. On September 30, 1904, Farr removed the wheat from the land on which it was grown, sold it to defendant company, and received the balance of the money, after deducting the amount of the seed wheat note. The respondent's miller received the wheat for the company, and none of the then officers or employésof the Babcock Company had any knowledge of the chattel mortgage. Connolly left with the company no note or memorandum of his agreement with North. Mr. Foster, the secretary of the Babcock Company, testified as follows: “In the first place, when the wheat is received at the mill it is bought by the...