CHICAGO, M., ST. P. & PR CO. v. Flanders
| Decision Date | 01 February 1932 |
| Docket Number | No. 9285.,9285. |
| Citation | 56 F.2d 114 |
| Parties | CHICAGO, M., ST. P. & P. R. CO. v. FLANDERS. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John N. Hughes, Willis J. O'Brien, and Stanton S. Faville, all of Des Moines, Iowa, for appellant.
Jepson, Struble & Sifford, of Sioux City, Iowa, for appellee.
Before KENYON, VAN VALKENBURGH, and GARDNER, Circuit Judges.
In this case the appellee as plaintiff below brought action against the appellant railway company to recover the value of a carload of cattle. The parties will be referred to as they appeared in the lower court.
The petition contained two counts. In the first, plaintiff pleaded a written contract dated February 17, 1930, by which the defendant as a common carrier agreed to transport from Sioux City, Iowa, to Henkin, S. D., and there deliver to Will Buntrock, thirty-five head of cattle; that the cattle were delivered by plaintiff to defendant at Sioux City, Iowa; but that defendant failed to carry out the contract and failed to make delivery to the consignee named therein, and likewise failed to return them to plaintiff, to his damage in the sum of $3,479.85. In the second count it was alleged that defendant as a common carrier, on the 17th of February, 1930, received from plaintiff thirty-five head of cattle consigned to Will Buntrock, Henkin, S. D., and that under the law defendant was required to safely deliver the cattle to the consignee, but that it negligently and carelessly failed so to do, to plaintiff's damage in the sum of $3,479.85.
The defendant's answer, in addition to a general denial, pleaded that at the time mentioned in plaintiff's petition plaintiff and defendant signed a uniform live stock contract as set out in plaintiff's petition; that the property described therein was in fact the property of a person who represented himself to be, and was known to plaintiff as, Will Buntrock, and who purchased the property from plaintiff and directed plaintiff to cause the same to be billed and shipped to him under the name of Will Buntrock; that the bill of lading, as well as title to the property, was transferred to and received by said person representing himself to be and known by the plaintiff as Will Buntrock, to whom the cattle were billed, and to whom plaintiff had sold them.
The undisputed evidence, substantial in character, proved the following state of facts: At the times in the petition mentioned plaintiff was engaged in the buying and selling of cattle at Sioux City, Iowa; on February 17, 1930, one of his salesmen entered into negotiations for the sale of thirty-five head of cattle to a party representing himself to be Will Buntrock, of Henkin, S. D. As this individual wished to buy the cattle on credit, the salesman took him to the plaintiff, whose cattle they were, so that terms of credit might be agreed upon. At the request of plaintiff, this stranger signed a property statement, describing certain farm lands near Henkin, S. D., as well as certain personal property consisting of cattle, horses, hogs, mules, sheep, and bills receivable, besides a considerable quantity of corn, oats, and spelt, and showing a total net worth of about $28,000. Plaintiff then telephoned the register of deeds at Madison, S. D., the county seat of the county in which the land described was located, and was advised that Will Buntrock was a substantial farmer, and that title to the lands described in the property statement appeared of record in his name. Plaintiff then sold the cattle to this stranger, taking from him a promissory note for the purchase price, plus freight charges, secured by a chattel mortgage describing the thirty-five head of cattle sold, fifteen head of other cattle, and one thousand bushels of corn, the cattle and chattels being described as being in possession of the mortgagor on his premises described as the northwest quarter of section 16, township 105, range 52, Lake county, S. D. This note and mortgage the stranger signed under the name of Will Buntrock. Plaintiff agreed to pay freight charges as a part of the consideration for the note.
The cattle were released by plaintiff from the stockyards at Sioux City, Iowa, and there delivered to the defendant for transportation under a straight bill of lading, which named Will Buntrock, of Henkin, S. D., as consignee. The shipment went forward on one of defendant's trains, leaving Sioux City about 8:30 p. m. February 17, 1930.
As required by the laws of South Dakota (Rev. Code 1919, § 1578), the mortgagor was furnished with a correct copy of the mortgage, and the mortgage contains a recital that: "Receipt of a full, perfect and complete copy of the above mortgage is hereby acknowledged." He was also given a copy of an account sales, which was made out on the stationery of J. A. Flanders, Sioux City, Iowa, and recited the sale of these cattle to Will Buntrock.
Before the train in which this ear of cattle was being transported arrived at Sioux Falls, S. D., the purchaser of these cattle presented himself at the office of the defendant railway company at Sioux Falls, S. D., reported that he was the owner of the car of cattle about to arrive on an incoming train, and wished to have the destination of the car changed to Colton, S. D., a few miles from Henkin. There was no station agent on duty at the time, but he made his request to a telegraph operator, who was the only representative of the railroad company on duty at the time, and exhibited to him a copy of the chattel mortgage which had been furnished him, also the account sales which had been furnished him, and a shipping order. Convinced that this party was the owner of the cattle, and as such entitled to direct the change requested, the telegraph operator sent a message to the conductor in charge of the train, directing him to cut the car out and spot it at the Colton stockyards. On arriving at Colton, the conductor cut the car out and spotted it at the stockyards, ready for unloading.
Later the same night, this party employed a truckman at Sioux Falls to go to Colton for the purpose of transporting these cattle to the stockyards at Sioux Falls. The truckman, with two other truck drivers and the purchaser of these cattle, drove to Colton, found the car of stock spotted at the stockyards ready for unloading. The purchaser opened the car, the cattle were unloaded into the stockyards, and thence onto the trucks, and hauled to the Sioux Falls stockyards, where they were sold. No railroad employees were present at the time of the unloading of the car or the taking of the cattle from the stockyards at Colton, S. D.
Will Buntrock of Henkin, S. D., testified on behalf of the plaintiff that he was a farmer, and that he owned the land described in the statement furnished by the purchaser of the cattle, that he was the only party of his name in that vicinity, but that he had not purchased these cattle or authorized any one to purchase them for him, and knew nothing about the transaction.
At the close of all the testimony, both parties moved for a directed verdict. Thereupon the court discharged the jury, and in due time entered judgment for the plaintiff, and defendant has appealed.
Both parties, having moved for a directed verdict, thereby submitted to the court all disputed questions of fact, if any, and its findings have the same force and effect as the verdict of a jury. American Surety Co. v. Republic Casualty Co. (C. C. A.) 42 F. (2d) 807; Springfield Fire & Marine Ins. Co. v. National Fire Ins. Co. (C. C. A.) 51 F.(2d) 714; Southern Surety Co. v. Fidelity & Casualty Co. (C. C. A.) 50 F.(2d) 16; Hookway v. Bank (C. C. A.) 36 F.(2d) 166. There was, however, no dispute in the evidence as to any substantial question of fact, and the question presented is whether, under the facts, the plaintiff was entitled to recover.
The party who purchased these cattle from plaintiff was an impostor and a swindler. Plaintiff personally negotiated the sale of these cattle to a stranger, whom he met face to face and identified as Will Buntrock. He took a property statement from him, which he verified by telephoning to the register of deeds at Madison, S. D., and thereby satisfied himself as to the identity of the party and his financial responsibility. He then sold the cattle to this impostor, taking from him his note for the purchase price and the freight charges, and taking as security the chattel mortgage which has been described. This mortgage contained various recitals, among others, that the property described was in possession of the mortgagor; that all the stock, cattle, and chattels were owned by the mortgagor, free and clear of all liens and incumbrances, and in his undisputed possession on the premises described, in Lake county, S. D.; that the mortgagor would forever warrant and defend title and possession of the cattle, stock, and chattels described, against every person whomsoever; that "said stock and cattle have been in the undisputed possession of the party of the first part (mortgagor) for the period of one day last past, having been purchased by the party of the first part from J. A. Flanders of Sioux City, Iowa."
The account sales delivered to the impostor by the plaintiff, was in the following words and figures:
The shipping order, with a copy of which impostor was also apparently furnished by the plaintiff, was dated February 17, 1930, and directed delivery to the Milwaukee Road for shipment, thirty-five steers, to be loaded from block 19, pen 42, consignor, J. A. Flanders, consignee, Will Buntrock, destination, Henkin, S. D., and signed J. A. Flanders.
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