Dale v. Counsil Bluffs Savings Bank

• Decision Date: 30 April 1903
• Parties: WALTER F. DALE ET AL. v. COUNSIL BLUFFS SAVINGS BANK
• Court: Nebraska Supreme Court

94 N.W. 983

65 Neb. 694

WALTER F. DALE ET AL. v. COUNSIL BLUFFS SAVINGS BANK

Supreme Court of Nebraska

April 30, 1903

REVERSED AND REMANDED.

AMES C. DUFFIE and ALBERT, CC. concur.

OPINION

AMES, C.

This case is submitted on reargument after a rehearing granted from a former decision found on page 692, ante. It is not deemed necessary to restate the facts recited in that opinion, and in the opinion to which it refers. The rehearing was granted because the defendant in error contended that we had misapprehended the date of a conversation between Woollen, the owner and mortgagor of the cattle, and Brown and Dale, the agisters, and that said date is of controlling force in the decision of the controversy. The mention of this date in the opinion is, however, rather indefinite, than incorrect. The mortgage under the authority of which Perry claimed the right to take possession of the cattle, or at least the only valid mortgage in evidence, and of which the agisters are to be presumed to have had notice, provided that in case of default of the mortgagor the animals should be sold for the satisfaction of the mortgage debt at the Union Stock Yards at South Omaha, in Douglas county, after twenty days' advertisement of the sale in a newspaper published in that county. It was after Perry had told the agisters that Woollen had notified the mortgagees to take the cattle under the instrument, and had signified to them his intention so to do, that the conversation in question took place. These representations were an assertion of the right of possession, and substantially a demand for it, and seemed to have prompted Brown and Dale to visit Woollen, to whom they, at least in part, repeated them, and from whom they received a confirmation of them. The opinion is therefore literally correct in saying that "After Perry had demanded the cattle for this purpose [namely, taking them to South Omaha for sale], and had asserted that Woollen had abandoned all claim to them, Brown and Dale went and saw the latter, who said to them: 'You see that you get your feed lien satisfied out of the cattle. So far as I am concerned, I can do nothing for you, but you get your feed lien out of the cattle, and it will be perfectly satisfactory to me,'" etc. It was after both these conversations that Perry did seize the cattle and drive them to Atlanta for the purpose of shipping them to South Omaha. This purpose Woollen had not only...