Brandom v. Power
| Decision Date | 27 January 1930 |
| Citation | 27 S.W.2d 65,224 Mo.App. 858 |
| Parties | SMITH F. BRANDON, APPELLANT, v. KANSAS CITY STOCK YARDS COMPANY ET AL., GARNISHEE, SCOTT KENNEDY ET AL., INTERPLEADER, RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
Howard L. Jamison and Smith F. Brandom for appellant.
Farris & Phillips for respondent.
Trimble, P. J., absent.
On April 7, 1927, plaintiff Brandom, commenced by attachment this action against defendant, W. H. Power, in the circuit court of Jackson county, Missouri. The petition was based upon a promissory note executed by defendant in favor of Crider Bros. Commission Company, as payee, who endorsed the note to plaintiff. This note was dated December 15, 1925, and was in the sum of $ 1073.17. It was payable four months after date. On April 8, 1927, the Kansas City Stock Yards Company and the Chicago, Burlington & Quincy Railroad Company were served with the writ of attachment and summoned as garnishees. On May 11, 1927, the Railroad Company filed a separate answer stating that at the time of the service of the writ it was in possession of fifty-seven head of live stock consigned by the Kennedy-Bone Calf Company in Kansas City, Missouri, to defendant at Humboldt, Nebraska. Later, upon motion of the Railroad Company, the Kennedy-Bone Calf Company was ordered to interplead to the case. Thereafter the Kennedy-Bone Calf Company filed its interplea claiming to be the owner of the live stock in question. To this interplea plaintiff filed an answer alleging that the stock was the property of defendant at the time of the service of the writ of attachment.
On April 11, Scott Kennedy and Orland S. Bone, as partners doing business under the name and style of Kennedy-Bone Calf Company, filed a suit in replevin against the Kansas City Stock Yards Company and the Chicago, Burlington & Quincy Railroad Company, and under the writ the stock in question was taken out of the possession of the defendant, Kansas City Stock Yards Company, and delivered to the plaintiff. By an agreement of the parties the two cases were consolidated, a jury was waived and the two cases were tried at the same time upon the same evidence. At the conclusion of the trial the court rendered separate judgments, one in the attachment suit in favor of the interpleaders and the other in the replevin suit in favor of the plaintiff therein. Plaintiff in the attachment suit has appealed but there does not appear to have been any appeal taken from the judgment in the replevin case. No question has been presented here, except as to the title of the stock at the time of the service of the writ of attachment. All other points raised by plaintiff appear to be conceded by interpleaders.
The facts show that one W. H. Power of Humboldt, Nebraska, on April 7, 1927, purchased at the Kansas City Stock Yards in Kansas City, Missouri, fifty-seven head of calves from the Kennedy-Bone Calf Company, a co-partnership of Kansas City, Missouri, at the price and sum of $ 1847.54. Under the terms of the purchase the sale was for cash. Power delivered to the Calf Company his check in the sum of $ 1867.54. This sum covered the purchase price of the calves plus $ 20 cash which at the time was advanced to him by the Calf Company. Power directed the Calf Company to ship the calves to him at Humboldt, Nebraska, but did not designate the railroad over which the shipment should be made. The check was drawn on the Nebraska State Bank of Humboldt, with which Power did business.
Scott Kennedy, one of the interpleaders, testified that he did not consider the check when he received it from Power as payment until it should be honored. So on April 7, 1927, he wired the Nebraska State Bank at Humboldt, Nebraska, as follows:
To this wire the bank on April 8, 1927, answered by telegraph as follows:
"Your wire seventh will pay W. H. Power check."
The calves were not shipped until the Calf Company received this wire from the bank.
The facts further show that on the afternoon of April 7, one Rea of the Crider Commission Company told interpleader, Bone, that he had "a little inkling" that the calves would be attached if they were delivered by the interpleaders to the railroad company for shipment to Power, and that he was anxious to know whether Bone had received any answer to the wire that had been sent to the bank. Bone told Rea that the interpleaders would not ship the calves until they received a wire from the bank "saying they would pay the check." The next day, or on April 8, Bone told Rea that he had received an answer to the message.
The facts further show that upon receipt of the telegram from the bank, stating it would pay the check, interpleaders ordered the Stock Yards Company to deliver the calves to the Chicago, Burlington & Quincy Railroad Company for shipment to Power at Humboldt. Kennedy testified that, as he did not consider the Power check payment until it was honored, he relied upon the wire from the bank honoring the check in shipping the cattle and that they would not have been shipped unless the wire had been received. After the Calf Company ordered the Stock Yards Company to turn over the calves to the Railroad Company and after the last-mentioned company was served with the writ of attachment the Railroad Company notified Kennedy of the service of the writ. Thereupon Kennedy called up the bank and asked "if Power had this money in the bank." The agent of the bank talking for it said, "no, that he had made some arrangements to take care of it when the check arrived, and I told them that the cattle were still in the yards, and they had been attached, and then he said, 'well, in that case we will not pay the check.'" Kennedy further testified that he thought it strange that the bank would certify the check if Power did not have the money there to pay it and that the witness was taking the check on the condition that the check "was good." Kennedy further testified that the reason he called the bank after the calves had been attached was that he didn't consider the check as payment of the cattle and wanted to know if the check would be paid.
The facts further show that after the telephone conversation, and on April 9, 1927, the bank sent the following wire to the interpleaders:
"Will not honor check for fifty seven calves for W. H. Power."
However, the check was deposited by the interpleaders in their bank in Kansas City and after going through the usual course it was returned protested for non-payment.
The cattle were shipped by the interpleaders under a straight bill of lading to Power as consignee, destination Humboldt, Nebraska, freight to be paid by the consignee.
The evidence shows that Power did not have the money in the bank with which to meet his check but there was a custom followed between Power and the bank in reference to the payment of checks given for live stock which he purchased. It appears that Power was a dealer in live stock and that the practise was for Power to give his check to the seller for the purchase price of the live stock; that the stock would be shipped to him and would arrive before the check and upon the arrival of the former he would give a chattel mortgage on them to the bank for the purchase price of the stock, the bank giving him credit on his account for the amount of the mortgage, and upon the arrival of the check it would debit Power's account with the amount thereof. In this way he was enabled to pay for the stock. Of course, in this instance the live stock never arrived at Humboldt and the usual procedure was not followed.
At the conclusion of all of the testimony the plaintiff requested the court to make findings of facts and conclusions of law. The court refused to give the conclusions of law, amended the findings of fact requested and gave them as so amended and his own conclusions of law. From the findings of fact and the conclusions made by the court it would appear that the court decided this case for the interpleaders on the theory that as the purchase price of the calves was to be paid in cash and as Power had no funds in the bank with which to meet his check and as the bank finally refused to pay the check, the calves were not paid for; that Power did not designate the road over which the calves were to be shipped and therefore the railroad was the agent of the sellers, that this, together with the fact that the consignee was to...
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