Catron v. Shepherd

• Court: Supreme Court of Nebraska
• Writing for the Court: MAXWELL
• Citation: 1 N.W. 204,8 Neb. 308
• Parties: JAMES H. CATRON, PLAINTIFF IN ERROR, v. JOHN E. SHEPHERD, DEFENDANT IN ERROR.
• Decision Date: 09 April 1879

8 Neb. 308
1 N.W. 204

JAMES H. CATRON, PLAINTIFF IN ERROR,
v.
JOHN E. SHEPHERD, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed April 9, 1879.

Error from Otoe County.

[1 N.W. 205]

J. L. Mitchell, for plaintiff in error.

S. H. Calhoun, for defendant in error.

MAXWELL, C. J.

--On the tenth day of October, 1872, the defendant purchased of A. N. Pierce, of Texas, eleven hundred and six head of cattle for the sum of $20,362, the money to be paid in installments as provided in a written contract executed by the parties at that time. The plaintiff was appointed agent by Pierce to collect and receipt for these payments. Various payments were made by the defendant upon the contract up to the twenty-sixth day of June, 1874, when there remained due and unpaid the sum of $3,000. This sum the defendant appears to have been unable to pay, and Pierce offered to take one thousand dollars for the claim if Shepherd could pay within a certain time.

O. P. Mason, with whom the claim was left, testifies as follows: “It was not paid at the time, and Pierce instructed me to sell for $500 and attorney's fees, and I notified Shepherd and Catron. I left the papers in the office, and afterwards it was sold to Catron. Catron appeared to be assisting Shepherd in getting as favorable a compromise as possible out of Pierce, and it was a long time afterwards that Catron bought the claim.” This testimony is not denied.

In August, 1874, the plaintiff and defendant entered into the following contract: “This is to certify that I, the undersigned, have agreed with James H. Catron to furnish on my farm in Wayne County, Iowa, and Apinese County, Iowa, feed lots, all my pastures from the first of September through the fall and winter for $200; about ninety acres of corn at seven dollars per acre; also some four hundred dollars in money--this amount in corn making over twelve hundred dollars. Also what tame grass hay at $4 per ton to be fed into James H. Catron's cattle. Upon these conditions, that

[1 N.W. 206]

this feed lot and money is to go in as so much money, entitling the undersigned to half the profit or loss in these cattle, at a previous fixed valuation, with interest at fixed rate as in Nebraska. The said Catron to furnish money to feed and buy what hogs he may deem expedient. The said Catron holding all right and title in all above mentioned property. The undersigned is given authority to go and buy corn to feed these cattle and hogs, taking a receipt for all moneys paid out, and to return any balance in his hands to the said Catron. Is to receive a fair compensation for actual services in buying corn and attending cattle. Catron's time per day to offset Shepherd's time per day.

+------------------------------+
                ¦(Signed.)¦“JOHN E. SHEPHERD.” ¦
                +------------------------------+
                

This contract appears to have been made to take the place of another which had existed between the parties for some time. In January, March and April, 1875, the plaintiff sold the stock and retained the entire proceeds, amounting to a very large sum. The profits due the defendant exceeded the sum of $1,900. On or about the sixth day of April, 1875, Catron being about to leave for Iowa to ship and sell the last lot of stock, purchased from Mason & Lehman, the attorneys for Pierce, the account due from Shepherd to Pierce for the sum of $500, and he claims to have paid one Hicklin $500 in addition, though for what particular purpose is not clear. This account Catron appears to have sought to turn in at its face in his settlement with Shepherd. The defendant offered to take the account in settlement at the sum the plaintiff had paid for it. This the plaintiff refused, and instituted this action on the account to recover the sum of $3,737.55, and interest and costs. The cause was submitted to the court without the intervention of a jury, and the court “doth find that the plaintiff and defendant were partners, engaged in the business of feeding and selling cattle and hogs; that the plaintiff made all sales and received the proceeds thereof, and while he had a considerable amount of partnership funds in his hands, and while the partnership affairs were unsettled, he purchased with his own money the claim sued on in this action; that while they were such partners, plaintiff purchased said claim at defendant's request, under an agreement that the amount paid, together with interest thereon at the rate of 12 per cent per annum, should be charged and allowed by the defendant in the final settlement between them, and that plaintiff paid for said claim the

[1 N.W. 207]

sum of $1,000, on the sixth day of April, 1875, and there is now due plaintiff from defendant...