Edmission v. Drumm-Flato Comm'n Co.

• Decision Date: 10 September 1903
• Citation: 73 P. 958,1903 OK 71,13 Okla. 440
• Parties: R. C. EDMISSION v. DRUMM-FLATO COMMISSION COMPANY, a Corporation.
• Court: Oklahoma Supreme Court

1903 OK 71

73 P. 958

13 Okla. 440

R. C. EDMISSION v. DRUMM-FLATO COMMISSION COMPANY, a Corporation.

Supreme Court of Oklahoma

Decided: September 10, 1903

Syllabus

¶0 1. DEMURRER TO EVIDENCE--Admits, What. A demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn from the evidence.

2. SAME--Province of Court. On a demurrer to the evidence, the court cannot weigh conflicting evidence, but will treat the evidence as withdrawn which is most favorable to the demurrant.

3. CHATTEL MORTGAGE -- Statutes Construed--Lien--Possession. Under Oklahoma statutes, a chattel mortgage creates a lien only upon the mortgaged chattels, and in the absence of specific agreement to the contrary, the mortgagor is entitled to possession, and the mortgagee is only entitled to possession after condition broken for the purpose of foreclosure and sale in order to divest the title of the mortgagor, and such sale must be had in the manner prescribed by law, or according to the terms of the power contained in the mortgage.

4. CHATTEL MORTGAGE--Consideration--Delivery of Possession. An agreement to do that which a person is already bound to do, does not constitute a sufficient consideration for a promise. But an agreement by the mortgagor to deliver the mortgaged chattels or a specified portion in full payment of the mortgage debt, imparts a sufficient consideration to support the promise to satisfy the indebtedness. The mortgagor parts with his title, and the mortgagee obtains title and possession of that which he only had a lien upon.

5. EVIDENCE--Sufficient, When. Evidence examined and held to be sufficient to entitle plaintiff to recover as against a demurrer.

June, 1903, Decided

Error from the District Court of Woods County; before John L. McAtee, Trial Judge.

Alexander & DeGeer, Houston & Marum and Harper S. Cunningham, for plaintiff in error.

Dale & Bierer and Botsford, Deatherage & Young, for defendant in error.

BURFORD, C. J.:

¶1 The plaintiff in error, R. C. Edmisson, who was plaintiff in the court below, brought an action in the district court of Woods county against the Drumm-Flato Commission Company, a corporation, and J. R. Gober, defendants, to recover several thousand dollars for an alleged conversion of several hundred head of cattle. The plaintiff in his petition alleged that on the 22nd day of November, 1899, he was indebted to the Drumm-Flato Commission Company in a large sum of money, which was evidenced by several promissory notes, and all secured by chattel mortgage upon certain cattle owned by plaintiff. That on the 22nd day of November, 1899, the plaintiff and said corporation entered into a written contract concerning said notes, mortgages and cattle, which contract as set out is as follows:

"This agreement made and entered into this 22nd day of November, 1899, by and between Drumm-Flato Commission Company, party of the first part, and R. C. Edmission, party of the second part.

"Witnesseth: That said R. C. Edmission, the second party, hereby agrees to deliver to Drumm-Flato Commission Company nineteen hundred (1900) head of cattle, as they run on the range (provided the same can be found to make this number of head), of various ages, on which said Drumm-Flato Commission Company hold a chattel mortgage. The parties of the first part agree, in consideration of the delivery of the above mentioned number of cattle, to deliver to said second party, R. C. Edmisson, all of his notes, mortgages and other indebtedness due said Drumm-Flato Commission Company to this date.

"It is further agreed by the parties above mentioned that if Mr. Edmisson gathers as many as 200 head after the delivery to Drumm-Flato Commission Company of said nineteen hundred head of cattle, he is to turn over 100 head of the 200 head gathered, or in case Edmisson delivers to said Drumm-Flato Commission Company as many as two thousand head of cattle, any residue thereafter is to be retained by said Edmisson.

"In witness whereof we have hereunto set our hands the day and year above written.

"R. C. EDMISSON,

"DRUMM-FLATO COMMISSION COMPANY,

"per H. DRUMM, Pt."

¶2 It was further averred that in pursuance of said contract plaintiff did gather and deliver to the defendant, as soon after November 22 as possible 1,710 head of cattle, and immediately thereafter gathered and held in close quarters for delivery to said defendant 350 other head of cattle, or so many as was due on said contract, on the promise of said defendant that it would send its agent, one Bryson, to receive said cattle. That plaintiff kept said cattle ready to deliver for about three weeks, awaiting the arrival of defendant's agent to take said cattle.

¶3 That the plaintiff was, is and at all times has been willing and ready to deliver the remainder of said cattle. That in December, 1899, one James R. Gober, an agent and employe of the defendant, at its direction and with its knowledge, and without the knowledge or consent of plaintiff, wrongfully and unlawfully took possession of and drove away all of plaintiff's cattle, amounting to four hundred head, and by intimidation and threats kept the plaintiff out of possession of his said cattle, and afterwards said Gober, as agent of the defendant, wrongfully, unlawfully and forcibly took possession of 300 head of cattle belonging to plaintiff, and that the defendant thus prevented the plaintiff from further complying with said contract.

¶4 That the defendant on the day of November, 1899, wrongfully, forcibly and without right, took, carried and drove away and appropriated to its own use 410 head of the plaintiff's cattle, of the value of $ 8,000, and to plaintiff's damage in the sum of $ 8,000, and plaintiff prays judgment against the defendants for the sum of $ 8,000 damages, and that the remaining cattle of said herd be subjected to payment of his claim.

¶5 To this petition the defendant, Drumm-Flato Commission Company, answered, first, by general denial; second, by setting up the notes and mortgage executed by Edmisson to the commission company, and averring non-payment, and claiming title to said cattle by virtue of said mortgages, and also by alleging that the contract described in plaintiff's petition was without consideration. The plaintiff filed reply and closed the issues. The cause was dismissed as to Gober.

¶6 The cause went to trial to a jury, and after the plaintiff had introduced his evidence and rested, the defendant demurred to the evidence; the court sustained the demurrer, and rendered judgment for the defendant for costs.

¶7 The plaintiff appeals, and the only question necessary to determine is whether the court erred in sustaining the demurrer to plaintiff's evidence.

¶8 The execution of none of the notes, mortgages or contracts pleaded are denied, under oath, hence their execution is admitted.

¶9 The plaintiff's evidence fairly establishes the fact that after the execution of the contract set out in the petition, that Edmisson went to the range where the cattle were on pasture, and after procuring several assistants rounded up and counted out 1710 head of the cattle referred to in the contract, and these were turned over to and accepted by the agent of the commission company. While these were being driven to the railroad for shipment, Mr. Edmisson and his assistants gathered up and held in a close pasture about 350 head of other cattle, and notified the agent of the defendant that they were ready for delivery, or at least a sufficient number to make out the 2,000 head of cattle. The agent, who was then engaged in loading and shipping the ones received, refused to take any more at that time, as the cattle were thin and weak, and stated that he would return for the remainder after he had shipped the ones already received. That Edmisson made efforts to get the commission company to send an agent to get the cattle, which they failed to do. That very shortly afterwards, Gober went into the pasture and forcibly drove away all the cattle belonging to plaintiff, and afterwards gathered all that he could find on the range or in the pastures, of the brands mentioned in the mortgage, and took possession of them, and by force of arms held them for the defendants. There is some question raised by the defendant in error as to whether the proof shows that Gober was acting for the defendant. As against a demurrer to the evidence, there can be no question but what Gober was acting for the defendant. He stated that he was acting for...