First Nat. Bank v. Ragsdale

• Decision Date: 26 November 1902
• Citation: 71 S.W. 178,171 Mo. 168
• Parties: FIRST NAT. BANK OF MEXICO v. RAGSDALE.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Supreme Court

71 S.W. 178

171 Mo. 168

FIRST NAT. BANK OF MEXICO v. RAGSDALE.^*

Supreme Court of Missouri, Division No. 1.

November 26, 1902.

REPLEVIN — TITLE — EVIDENCE — ESTOPPEL — SALE — BREACH OF CONTRACT — INSTRUCTIONS.

1. In replevin by one claiming under a mortgage of cattle, the simple question being whether the cattle belonged to the mortgagor or to defendant, who claimed by a title hostile to, and not under, the mortgagor, and there being no pretense that there was an outstanding title superior to that which one of them had, whether the mortgagor intended to defraud any one with the mortgage, or had the cattle replevied in mind, and intended to mortgage them when he made the mortgage, or whether the description in the mortgage fits the cattle, the mortgagor being estopped to deny that it is sufficient, is immaterial.

2. As bearing on the question whether mortgaged cattle belonged to the mortgagor or to defendant, the question of whose money paid for them is admissible.

3. The question being whether cattle belonged to the mortgagor thereof or defendant, evidence of the state of the account between them at the time of the purchase, and the fact that checks were then drawn by defendant and paid by the mortgagor, is admissible.

4. One is not estopped by his statements and acts to claim ownership to property; the status of all the parties being then fixed, and not being changed thereafter by reason of such acts and statements.

5. Where defendant bargained cattle to C., and C. paid off a mortgage on them, but did not take or pay for them, C. did not forfeit the amount he so paid; but defendant was entitled merely to any excess of the contract price over the market price at the date of the breach of the contract, or within a reasonable time thereafter, and could not keep them for six months, and charge C. with the loss from so doing.

6. Where instructions are good as far as they go, one cannot complain that they do not cover the whole law; not having asked for further instructions.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Replevin by the First National Bank of Mexico against Clarence C. Ragsdale. Judgment for defendant. Plaintiff appeals. Reversed.

This is an action in replevin for 120 head of cattle, begun in the Monroe county circuit court, to the October term, 1896, and by consent of parties the venue changed to Audrain county. This is the second appeal to this court of the case. The decision on the first appeal is reported in 158 Mo. 668, 59 S. W. 987, 81 Am. St. Rep. 332. The second trial resulted in a verdict and judgment for defendant, and the plaintiff has again appealed. Upon the first trial and appeal the defendant claimed that the note and mortgage under which the plaintiff claimed title were never delivered to the mortgagee, and were never uttered by him, but that the mortgagor indorsed the mortgagee's name on the back of the note, and himself uttered the note and mortgage in that way directly, and therefore no title passed thereunder. This view had been taken by the trial court, and in consequence that court excluded the note and mortgage, and that ruling resulted in the plaintiff's suffering a nonsuit. On former appeal that contention was decided against the defendant by this court, and the judgment of the trial court was reversed, and the cause remanded for trial anew. On the second trial in the circuit court the defendant claimed that the cattle seized under the writ of replevin in this case belonged to him, and not to the mortgagor; that the particular cattle seized in this case never belonged to the mortgagor, but were purchased by the defendant with his own money; and, furthermore, that at the date of the execution of the mortgage the only cattle that were owned by the mortgagor that in any way answered the description of the cattle in the mortgage were 133 head, on which Clay, Robinson & Co., of Chicago, had a mortgage, and that those cattle were shipped to Clay, Robinson & Co. in January, 1896, and by them sold, their mortgage debt deducted, and the balance sent direct to the mortgagor. In this connection it is proper to observe that one of the contentions of the plaintiff is that the balance so resulting was sent by the mortgagor to the defendant for the express purpose of being used to partly pay for the cattle that were seized under the writ in this case. It will be necessary, therefore, in this case, to restate the salient facts as developed upon the second trial, which, for the sake of perspicacity, will be stated in their chronological order, without regard to whether they were developed on the trial by the plaintiff or the defendant: Crockett B. Ragsdale and the defendant, Clarence C. Ragsdale, are half-brothers. Crockett was assistant cashier of the First National Bank of Hannibal. Clarence was a farmer, and lived near Perry, Ralls county. In the winter of 1894 the First National Bank of Hannibal had a mortgage on 300 head of cattle, made by one Rogers, of Monroe county, and to prevent loss the bank took the cattle, turned them over to Crockett, — he assuming the debt that Rogers owed the bank, — and he placed them in the care of Clarence, to be fed and sold. Crockett owned two farms near the farm owned by Clarence, on which he made extensive improvements. Crockett owned, as hereinbefore stated, 133 head of cattle, which were cared for by Clarence, and sold in January, 1896, to Clay, Robinson & Co. Clarence "bargained" to sell Crockett 161 head of cattle for $40 a head, to be delivered from the 1st to the 20th of August, 1895, on which, however, one Johnson had a mortgage for $2,165. Crockett took up the Johnson mortgage, but did not take the cattle; and in the following February Clarence sold them, and claims that the loss and cost of feeding them left Crockett in his debt in an amount in excess of the $2,165 that Crockett had expended in taking up the Johnson mortgage on the cattle. In September, 1895, 100 of the cattle seized on the writ of replevin in this case belonged to Lute Smith, and were on his farm, in Callaway county; and the balance belonged to Eph Hughes, and were in his possession. They were yearlings, and not such cattle as are known to stockmen as "feeding cattle." Clarence contracted to buy these cattle, and paid Smith $250 on account of the agreed purchase price; and on January 22, 1896, Clarence paid Smith the balance of the purchase price, and took the cattle to his (Clarence's) farm, in Ralls county. Clarence also paid Hughes for the remaining cattle, and took them to his said farm. Clarence claims that it was his money that paid for these cattle, while the plaintiff claims it was Crockett's money that paid for them; the balance resulting from the sale of the 133 head sold by Crockett to Clay, Robinson & Co., amounting to $1,085.86, being alleged to be a part of the money belonging to Crockett, which was used to pay for the cattle here in controversy. On the 13th of December, 1895, Crockett made a promissory note for $3,500, due May 1, 1896, to the order of Clarence, and secured it by a chattel mortgage on "one hundred and twenty head of feeding cattle now on feed in Audrain county, Missouri." Clarence knew nothing about the note or mortgage, and never had possession of it. Crockett, however, indorsed Clarence's name on the back of the note, and sent the note and mortgage to W. A. Latimer, at Sedalia, with a request to him to negotiate it. In the letter transmitting the note and mortgage, Crockett said to Latimer that the cattle were "one thousand pound cattle," and that he had his own corn to feed them, and expected to ship them April 1 and May 1, 1896. Latimer sent the note and mortgage to brokers in St. Louis, who sold them to the plaintiffs in this case, and remitted the proceeds to Latimer. Crockett was indebted to Latimer in the sum of over $2,000. Latimer deducted this debt from the proceeds of the sale of the note and mortgage, and sent the balance, amounting to $1,175.57, to Crockett, and Crockett placed that sum to Clarence's credit in the Perry bank on January 25, 1896; and it is claimed by the plaintiff that this sum was used by Clarence in partly paying for the cattle in question. It will be noted, however, that this sum was placed to Clarence's credit in the Perry bank on the 25th of January, 1896, and that Clarence says he made the final payments for these cattle to Smith and Hughes on January 22, 1896. It is claimed by Clarence that he did work for Crockett on his farms (built houses, furnished materials, tended his cattle, furnished corn to feed his cattle, etc.) amounting to a very considerable sum in all, and that Crockett is still in his debt. On the other hand, it is claimed and was offered to be shown by the plaintiff that during 1894 and 1895 Crockett paid checks drawn by Clarence on the First National Bank of Hannibal amounting to $5,600; but the court below excluded this evidence, as being prior to the date of the mortgage or the purchase of the cattle in question, and too remove to throw light upon this controversy, and this ruling is included in the plaintiff's assignment of errors here. In March, 1896, it was discovered that Crockett was a defaulter to the First National Bank of Hannibal for something like $18,000, which he had used to purchase a farm in Callaway county, Mo., and one in Pike county, and had invested in various business projects. At that time there were on his farm 277 head of cattle, 30 of which the defendant claimed belonged to his (defendant's) wife. It developed that the First National Bank of Hannibal had a mortgage purporting to cover 300 head of cattle. The plaintiff had the mortgage involved in this suit, purporting to cover 120 head of cattle. Other mortgages were also outstanding, that Crockett had executed, purporting to cover certain other amounts of cattle. When the crash came, Latimer, who was the indorser on the note secured by the mortgage in question, went to see the...