Buckingham v. Dake

Citation112 F. 258
Decision Date25 November 1901
Docket Number1,557.
PartiesBUCKINGHAM v. DAKE et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Clifford Histed and Garland M. Jones (Charles Blood Smith and W.H Rossington, on the brief), for plaintiff in error.

C Angevine (J. K. Cubbison, on the brief), for defendants in error.

This was an action in replevin instituted by A. C. Dake and E. A Keeler, the defendants in error, against E. J. buckingham plaintiff in error, to recover possession of 311 head of three year old steers. The plaintiff below claimed title to the steers by reason of a chattel mortgage executed by one Gillett on November 18, 1898, to secure the payment of a certain negotiable promissory note executed by Gillett, of even date with the mortgage, for the sum of $15,060.93, payable December 3, 1898, to the order of Thomas Trower's Sons, indorsed by the last-named firm, and held by the plaintiffs at the time of the institution of this suit. In due course, pursuant to the provisions of the statutes of Kansas, an order of delivery was secured, the defendant, Buckingham, executed a redelivery bond to the plaintiffs, and the cattle were left in the possession of the defendant. The defendant then filed his answer to the petition, denying each and every allegation thereof. The case came on for a hearing, which resulted in a judgment in favor of the plaintiffs for the possession of the cattle, and, in default of delivery thereof to them, a money judgment for $13,800.11. To reverse this judgment, the case is brought here by writ of error.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS District Judge, after stating the case as above, .

The first assignment of error raises the question of jurisdiction. The record discloses that Buckingham was a citizen of Kansas; that two members of the firm of Trower's Sons, the payees in the note secured by the mortgage, were also citizens of Kansas, and that the plaintiffs, Dake and Keeler, were citizens of Colorado; that Trower's Sons held the note and mortgage in question until December 10, 1898, when the note, duly indorsed by them with the mortgage securing the payment of the same, was transferred to the plaintiffs; that, prior to the delivery of the note and mortgage to plaintiffs, Trower's Sons made a demand upon Buckingham for the possession of the cattle in question; that afterwards, on December 31, 1898, and prior to the commencement of this suit, the plaintiffs made a later demand for the cattle. It is contended by defendant that this was a suit to recover the contents of a chose in action, within the meaning of the act of March 3, 1887 (24 Stat. 552). The provision of that act relied upon reads as follows:

'Nor shall any circuit or district court have cognizance of any suit except upon foreign bills of exchange, to recover the contents of any promissory note, or other chose in action, in favor of any assignee, or of any subsequent holder of such instrument * * * unless such suit might have been prosecuted in such court to recover the said contents, if not assignment or transfer had been made.'

As already observed, this was a suit in replevin. It is true, plaintiffs set up the mortgage and note, and alleged the transfer of them to themselves, in their petition, but these averments were made solely for the purpose of showing their title and right to the possession of the property mortgaged. The object of the suit was not to foreclose the mortgage, nor to secure a judgment upon the note, but to secure possession of the cattle mortgaged, for the ultimate purpose of subjecting them by proper proceedings to the obligation created by the mortgage. Gillett, the maker of the note and mortgage, would have been a necessary party to a suit to recover their contents; but he was not a party, and was not required to be a party, to this action. The only defendant to this action is one Buckingham, a stranger to the contract evidenced by the note and mortgage, and, according to the averments of the petition, a trespasser wrongfully in possession of the cattle in question. The gist of the action in replevin is the wrongful detention of property. The action itself sound in tort. Wilson v. Fuller, 9 Kan. 176-190; Wilhite v. Williams, 41 Kan. 288-290, 21 P. 256, 13 Am. St.Rep. 281.

The supreme court of the United States, in Deshler v. Dodge, 16 How. 622, 14 L.Ed. 1084, placed a construction upon the eleventh section of the judiciary act of 1789, which denied to any circuit or district courts cognizance of any suit 'to recover the contents of any promissory note or other chose in action in favor of an assignee unless a suit might have been prosecuted in said court to recover the said contents, if no assignment has been made. ' This, it will be observed, is substantially the same as the provision found in the judiciary act of 1887 under consideration. In that case the supreme court, speaking by Mr. Justice Nelson, says:

'We are of opinion that this clause of the statute has no application to the case of a suit by the assignee of a chose in action to recover possession of the think in specie, or damages for its wrongful caption or detention, and that it applies to cases only in which the suit is brought to recover the contents or to enforce the contract contained in the instrument assigned.'

In a subsequent case (Bushnell v. Kennedy, 9 Wall. 387-392, 19 L.Ed. 736, 738), it was held that the exceptions to the jurisdiction applied only to 'rights of action founded on contracts which contain within themselves some promise or duty to be performed,' and 'not to mere naked rights of action founded on some wrongful act, some neglect of duty to which the law attaches damages.'

In the case of Ambler v. Eppinger, 137 U.S. 480-482, 11 Sup.Ct. 173, 34 L.Ed. 765, the supreme court, considering the language found in the judiciary act of 1887, already quoted, approves the construction placed upon the same provision of the judiciary act of 1789, and says, referring to the exceptions to jurisdiction, as follows:

'They must be such as arise upon contracts of the original parties, and not founded, like the one in controversy, upon a trespass to property.'

We think the foregoing cases are decisive of the question now under consideration. Many of the cases to which our attention is called by learned counsel for defendant relate to a consideration of the judiciary act of March 3, 1875. This last-mentioned act differs materially from the acts of 1789 and 1887. The act of 1875 (18 Stat. 470) provides that neither the circuit nor district court shall have cognizance of any suit 'founded on contract in favor of an assignee unless a suit might have been prosecuted in such court to recover thereon, if no assignment had been made,' while the other acts withhold jurisdiction only in cases where the action is to recover the contents of promissory notes or other choses in action. This difference makes many of the cases and much of the argument relied upon by learned counsel inapplicable to the present case.

We are clearly of opinion that this first assignment of error is without merit.

The proposition relied upon by defendant's counsel in support of their next assignment of error is that there was a defect of parties plaintiff in this case, because the members of the firm of Trower's Sons were necessary parties, and were not joined with the plaintiffs. They contend that the following provisions of the chattel mortgage in question conferred upon Trower's Sons a valuable interest in the mortgaged property, requiring them to be made parties to the action, namely:

'When marketed, said cattle are to be shipped and consigned for sale to Thomas Trower's Sons, at the stock yards at Kansas City or St. Joseph, Mo.; and when sold, the proceeds thereof shall be applied, first, in payment of the usual and customary commission to said Thos. Trower's Sons for selling same; and the balance, or so much thereof as may be necessary, shall be applied on, the indebtedness hereinafter described. If said cattle, or any part thereof, be consigned or sold elsewhere than above, then said mortgagee shall be paid a commission of 50 cents per head for each head so consigned or sold: provided, always, and these presents are upon this express condition, that if said party of the first part shall pay or cause to be paid unto the said party of the second party, its successors or assigns, the commissions heretofore stated and agreed upon, and the aforesaid sum of $15,060.93, according to the terms of one certain promissory note of even date herewith, executed,' etc., '* * * then these presents and everything herein contained shall be void, anything herein contained to the contrary notwithstanding.'

It is contended that, by virtue of the foregoing provisions of the mortgage, the holder of the note, whoever he might be, and Trower's Sons, by reason of the right reserved to them in the mortgage of a commission of 50 cents per head of cattle became tenants in common of the mortgaged property, to the extent of their respective interests. In arriving at the true construction to be placed upon the mortgage in question, it is proper and necessary to take into consideration all its provisions. The mortgage first uses appropriate language describing the cattle conveyed, and transferring the title thereto to Trower's Sons, 'its successors and assigns.' Thereafter, and preceding the portion above quoted and relied upon by defendant's counsel, appear the following words: 'Said property to remain and be kept on the premises above described until the full payment of the indebtedness hereinafter described, unless sooner marketed or removed by and with the written consent of the mortgagee or its assigns. ' Then follow the words above...

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