Brown v. Barber

• Decision Date: 05 December 1891
• Citation: 28 P. 184,47 Kan. 527
• Parties: S. A. BROWN et al. v. E. A. BARBER et al
• Court: Kansas Supreme Court

28 P. 184

47 Kan. 527

S. A. BROWN et al. v. E. A. BARBER et al

Supreme Court of Kansas

December 5, 1891

Error from Allen District Court.

ACTION by E. A. Barber and George C. Barber, partners as E. A Barber & Co., against S. A. Brown and F. E. Parish partners as S. A. Brown & Co., to foreclose chattel mortgages executed by one Robbins, and recover property embraced therein from defendants. Judgment for plaintiffs. Defendants bring error. The facts appear at large in the opinion.

Judgment affirmed.

J. D McCleverty, and G. A. Amos, for plaintiffs in error.

J. B. F. Cates, and E. A. Barber, for defendants in error.

SIMPSON C. THORTON, C. J., and JOHNSTON, J., concurring. VALENTINE, J., concurs in part, dissents in part.

OPINION

SIMPSON, C.

This is an action commenced by E. A. Barber & Co. in the district court of Allen county to foreclose certain chattel mortgages, executed by E. S. Robbins, and to recover of S. A. Brown & Co. certain personal property that they claim was embraced in the chattel mortgages made to them by Robbins. Robbins was engaged in buying, selling and shipping live stock, and resided on a large farm that he owned near the city of Humboldt. S. A. Brown & Co. and E. A. Barber & Co. are private banking firms, both doing business in Humboldt, the bank of Brown & Co. being under the management of one T. W. Phelps. During the year 1886, and until some time in April, 1887, Robbins was depositing money and checking against the same, and from time to time receiving accommodation loans, and was permitted to overdraw his account in the banking house of S. A. Brown & Co. To secure S. A. Brown & Co., Robbins gave to them several chattel mortgages on live stock for loans and advances made to him by the banking house, all of which are set forth in the record, but only two of these mortgages are found and adjudged to be invalid in this action. One of these is dated January 13, and the other April 15, 1887. On the 13th day of January, 1887, Robbins borrowed of S. A. Brown & Co. $ 3,000, and to secure the same gave a chattel mortgage on a large amount of live stock, consisting of horses, mules, and cattle. On or about the 15th day of April, 1887, Robbins ceased to do his banking business with the house of S. A. Brown & Co., and was at that time indebted to them, in addition to other amounts, in the sum of $ 3,500, which was unsecured, and to secure it Robbins on that day executed and delivered to S. A. Brown & Co. a chattel mortgage on certain live stock, a portion of which was embraced in the one of date January 13th. After the execution of the mortgage of date April 15, 1887, Robbins ceased to do business with S. A. Brown & Co., and commenced to do his banking with E. A. Barber & Co., to whom he was indebted in the sum of $ 2,600 on previous transactions. E. A. Barber & Co. advanced money at intervals from the 15th day of April, 1887, to July 23 of the same year, at which time he was owing them about $ 4,000, and to secure it he gave them a chattel mortgage on a large number of horses and cattle. From July 23, 1887, until about the 10th day of August of the same year, E. A. Barber & Co. advanced Robbins additional sums of money, amounting to about $ 4,000, for which they had no security. About that time they ascertained from S. A. Brown & Co. the amount of Robbins's indebtedness to them, and discovered the fact that S. A. Brown & Co. were holding chattel mortgages on a large part of Robbins's personal property. On the 9th day of August, E. A. Barber & Co. entered into a written agreement with Robbins, by which he agreed to give them as additional security for the first $ 4,000 a first chattel mortgage on all his personal property not covered by any of the mortgages made to S. A. Brown & Co., and a second chattel mortgage on all his personal property embraced in the mortgages to S. A. Brown & Co., and to assign to E. A. Barber & Co. two life insurance policies of the face value of $ 10,000 each, and to give them a second mortgage on all his real estate, amounting to 880 acres of land. The chattel mortgages were executed and delivered in pursuance of this agreement. On the 2d day of January, 1888, Robbins had a large number of cattle, horses, mules and hogs on hand, and had no feed for them. In this condition of affairs, he made a proposition to S. A. Brown & Co., whose mortgage covered some, if not a large portion of the same, to turn over to them the property covered by their mortgages; and, in pursuance of such agreement, they took possession of the live stock mentioned in the sixteenth special finding of the referee. The live stock on which E. A. Barber & Co. had a first mortgage was by Robbins placed in the custody of one Alderman, under a contract made by Robbins and Alderman for care and feed.

The case was by stipulation of parties and an order of the district court referred to W. L. Simons, Esq., to try the same and report his findings of fact and conclusions of law. In June, 1888, the referee made his report, and his findings of fact and conclusions of law are as follows:

"1. The plaintiffs, E. A. Barber and Geo. C. Barber, are, and ever since the 1st day of January, 1886, have been, partners doing business at Humboldt, Allen county, Kansas, under the firm-name of E. A. Barber & Co. The defendants S. A Brown and F. E. Parish are, and ever since the 1st day of May, 1885, have been, partners doing business as bankers at Humboldt, Allen county, Kansas, under the firm-name of S. A. Brown & Co.; and that the defendant T. W. Phelps is and has been during all of said time the general agent of said S. A. Brown & Co., in charge of and managing their business. The defendants E. S. Robbins and Mary J. Robbins were, on the 12th day of January, 1887, and have been ever since, husband and wife, each to the other; and that on said 12th day of January, 1887, they resided, and ever since have resided, upon section 25, in township 25, of range 18, in Allen county, Kansas; and said section 25 and also section 36 in the same township and range, on the said 12th day of January, 1887, constituted, and was occupied and used and ever since has constituted and been occupied and used by said E. S. Robbins as his farm; and from January 1, 1887, until August 3, 1887, said E. S. Robbins was engaged in farming, and raising, buying, selling and shipping live stock, such as horses, mules, cattle, and hogs.

"2. On the 12th day of January, 1887, the said E. S. Robbins executed and delivered to said S. A. Brown & Co. his promissory note of that date for $ 3,000, at 90 days, with 12 per cent. interest per annum from its maturity, for money loaned by said S. A. Brown & Co. to said E. S. Robbins being the note first mentioned and copied in the answer of the defendants S. A. Brown, F. E. Parish, and T. W. Phelps; and to secure the payment of said note said E. S. Robbins, on the 13th day of January, 1887, executed and delivered his chattel mortgage of that date, duly verified by affidavit thereon, to said S. A. Brown & Co., upon the following-described personal property, to wit: 25 head of horses, mares and geldings of all ages; 8 yearling colts; 14 work mules, all ages; 90 head of calves nearly one year old; 80 head of cows of all ages; 70 head of yearling past, steers and heifers; being the first chattel mortgage mentioned in said answer last named, and the same chattel mortgage verified as aforesaid, of which 'Exhibit A' attached to said last-mentioned answer is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages on the 15th day of January, 1887; that at the time said chattel mortgage was executed and delivered, all the property described therein, as above, was the property of said E. S. Robbins, and was then in his possession and situated on his farm described in the foregoing first finding, and was all of the property then owned by him of the horse, cattle or mule kind. On the day following the execution of said mortgage said E. S. Robbins, with the knowledge and consent of said S. A. Brown & Co., commenced, and, with such knowledge and consent of the said S. A. Brown & Co., continued from said time until the execution of the mortgage hereinafter mentioned in the sixth finding of this report, on the 23d day of July, 1887, to treat and deal with said mortgaged property as his own, and from day to day to exchange portions thereof for other stock and to sell other portions thereof, and to purchase other live stock of the same general kind and character, and turn such purchased stock among and mingle the same with said mortgaged stock promiscuously, in such a manner and to such an extent that the identity of said mortgaged stock was lost, and then to select out promiscuously from the aggregate lot or number so commingled, of the stock so purchased and the stock mortgaged as aforesaid, a number of head nearly equal to but less than the number so purchased, and ship such selected stock to Kansas City, Mo., and there sell them, and use the proceeds of such sales for his own use and benefit, and without accounting therefor to said S. A. Brown & Co. in any manner whatsoever; neither did said S. A. Brown & Co. request or expect him to account for such proceeds. From January 13, 1887, to April 15, 1887, purchases were made and added to, and sales and shipments were made from the 190 head of calves,' and the '70 head of yearlings past,' mentioned in said mortgage, until there remained on hand and in said E. S. Robbins's possession on April 15, 1887, as the remnants of said calves and yearlings past purchased, and said calves and yearlings past mortgaged, and commingled as aforesaid, about 100 head; but whether any, and if any, how many, of...