First Nat. Bank of Silverton, Tex. v. National Live Stock Commission Co.

• Citation: 227 S.W. 640
• Decision Date: 07 February 1921
• Docket Number: No. 13859.,13859.
• Parties: FIRST NAT. BANK OF SILVERTON, TEX., v. NATIONAL LIVE STOCK COMMISSION CO.
• Court: Court of Appeal of Missouri (US)

227 S.W. 640

FIRST NAT. BANK OF SILVERTON, TEX., v. NATIONAL LIVE STOCK COMMISSION CO.

No. 13859.

Kansas City Court of Appeals. Missouri.

February 7, 1921.

Error to Circuit Court, Jackson County; T. B. Buckner, Judge.

"Not to be officially published."

Action by the First National Bank of Silverton, Tex., against the National Live Stock Commission Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

McGilvray, Woodbury & Warren, of Kansas City, for plaintiff in error.

Harding, Deatherage, Murphy & Stinson, of Kansas City, for defendant in error.

BLAND, J.

This is an action for conversion. There was a verdict and judgment for the defendant, and plaintiff has brought the case here by writ of error.

The facts show that one Scoggins, engaged in the buying, feeding, shipping, and selling of cattle in the state of Texas, purchased of John Burson, president of plaintiff bank, 63 head of steers. The bank loaned Scoggins the amount necessary to pay Burson for the steers, and Scoggins gave the bank his note for that sum. To secure the note Scoggins executed a chattel mortgage in favor of plaintiff on 101 head of steers, which included the 63 steers purchased by Scoggins of Burson. Prior to the maturity of the note and mortgage, and before the same was paid, and without the consent of plaintiff, Scoggins shipped the mortgaged cattle to defendant, a live stock commission merchant located at the stockyards in Kansas City. The cattle were sold by defendant, and a portion of the proceeds of the sale were remitted to the Interstate National Bank of Kansas City, which had a mortgage upon the cattle, and the balance to the First State Bank of Canyon City, Tex., to be credited to Scoggins' account.

The 101 head of cattle covered by Scoggins' mortgage were moved about from place to place in the state of Texas. Plaintiff sought to show that the cattle were finally shipped to Deaf Smith county, Tex., and mixed with 140 head of other cattle and were then shipped to the defendant at Kansas City for sale. Witness, Jack Hayes, traced the cattle from J. C. Mann's place, in Swisher county, Tex., to Deaf Smith county, and the witness testified that he accompanied the cattle from Deaf Smith county to Kansas City. In order to identify the cattle at Mann's place as the cattle upon which plaintiff had the mortgage, plaintiff sought to have the witness Hayes state that while the cattle were at Mann's place Scoggins at the latter's house told the witness that he had bought the cattle at Mann's place from John Burson. This evidence was refused by the trial court and the refusal of the same is assigned as error.

We think the evidence was competent. It was an admission of Scoggins, the party in possession of the cattle, to the effect that the cattle at Mann's place were those bought from Burson, and there has never been any controversy that the cattle Scoggins bought from Burson were mortgaged to the plaintiff bank. In other words, the evidence tended to show that the cattle at Mann's place in Scoggins' possession were not the latter's...