First National Bank of Leavenworth, Kansas v. Wright

• Decision Date: 02 February 1904
• Citation: 78 S.W. 686,104 Mo.App. 242
• Parties: FIRST NATIONAL BANK OF LEAVENWORTH, KANSAS, Appellant, v. WRIGHT, Respondent
• Court: Missouri Court of Appeals

78 S.W. 686

104 Mo.App. 242

FIRST NATIONAL BANK OF LEAVENWORTH, KANSAS, Appellant, v. WRIGHT, Respondent

Court of Appeals of Missouri, St. Louis

February 2, 1904

Appeal from Ralls Circuit Court.--Hon. David H. Eby, Judge.

REVERSED AND REMANDED.

STATEMENT.

In June, 1899, defendant purchased of W. B. McAlister & Co., at Kansas City, Kansas, fifty-four head of cattle for $ 2,268. For the purchase price defendant gave his promissory note secured by a mortgage on the cattle. He moved the cattle to his farm in Ralls county, Missouri. At the maturity of the note a new one was given for the principal and accumulated interest on the original note, aggregating $ 2,378.45. The renewal note matured in six months from date and bore interest at nine per cent per annum from maturity. Before maturity, the note with the mortgage on the cattle was, for value, transferred by McAlister & Co. to the plaintiff bank. On November 7, 1900, the bank indorsed on the note a credit of $ 1,635.11. The suit is to recover the balance of the note.

The answer, omitting caption, is as follows:

"Now comes the defendant and for answer to plaintiff's amended petition herein, admits the execution of the note sued on as alleged in the plaintiff's said petition and denies each and every allegation in said plaintiff's petition and not herein expressly admitted.

"For other and further answer to plaintiff's said petition defendant states that on the fifteenth day of September, 1900, he paid the plaintiff the amount of said note in full and that said payment was then and there accepted and received by the plaintiff in full satisfaction and payment of the said note.

"Defendant further states that on the fifteenth day of September, 1900 and before the commencement of this action, he, the said defendant, delivered to the plaintiff fifty-two cattle of great value, to-wit, the value of--dollars in full satisfaction and settlement and discharge of the note herein sued on and of the cause of action in plaintiff's said petition mentioned, and which said fifty-two cattle the plaintiff then and there accepted and received of and from the defendant in full satisfaction, settlement and discharge of said note sued on herein and of said cause of action in plaintiff's petition mentioned.

"And that at the time said cattle were so received by plaintiff and at all times down to and including the seventh day of November, 1900, they were well worth the full amount of the principal and interest of said note. Defendant having fully answered asks to be discharged and for costs and for general relief."

The reply was a general denial of the new matter set up in the answer. The verdict and judgment were for the defendant. Plaintiff appealed.

About September 12, 1900, the plaintiff bank sent W. H. Davis to the farm of the defendant in Ralls county to see about the mortgaged cattle. After arriving there he took possession of the cattle for the bank, secured pasturage for them for six or eight weeks and then shipped them to Kansas City and sold them there on November 7th, under the mortgage at private sale. The net sum realized on the sale was $ 1635.11 which was credited on the note by the bank. The principal controversy in the case centers on an alleged agreement or compromise, testified to by defendant and denied by plaintiff's evidence, that Davis took the cattle in full payment and satisfaction of the note, and on the authority or want of authority of Davis as the agent of the plaintiff to make the alleged agreement or compromise, if it was made.

The note fell due June 26, 1900, when plaintiff wrote defendant making inquiry about the mortgaged cattle and their condition. This letter the defendant answered as follows:

"Vandalia, Mo., July 2, 1900.

"Dear Sirs:

"Yours received. There are 53 head of cattle on good blue grass. They will average now, I think, close to 1,100 lbs. They have not been weighed for some time. The cattle will remain on the farm until sold. There is $ 65 more against these cattle beside the note you hold, for feed bill last winter. Cattle are worth the money and doing well.

"Yours truly,

"D W. WRIGHT."

No further correspondence was had between the parties until September 7, 1900, when the defendant wrote plaintiff as follows:

"Dear Sir:

"The cattle are doing no good, shrinking every day. I am out of water in the pasture and can't do justice by them. I am not able to rent other pasture. I am ready to turn them over to you; you to pay a note of $ 65 against them for feed bill. I have put in two summer's grass and winter's feed and that is all I can lose on them.

"Yours truly,

"D. W. WRIGHT."

Plaintiff answered the above letter as follows:

"September 8, 1900.

"We are in receipt of your favor of the seventh inst. We were in hopes the cattle were getting better every day. If they are doing no good, something must be done at once. Please write me by return mail and say what, in your opinion, they will average in weight and quality, and if you would recommend shipping now."

On the following day defendant wrote the president of the bank as follows:

"A. Caldwell,

"Dear Sir: Yours just rec'd. In regard to the cattle the quality is good but they have shrunk until I hardly think they will average over 1,000 pounds. They did fine until my grass dried up and water gave out. I have no grass where the water is and they have got to breaking in the corn fields and they act so I have to keep them in a lot and feed them green corn. I think you could get a pasture for them about eight to ten miles from here where there has been rain. The cattle are not ready for market. I will just have to give them up as I am not able to hold them. The cattle have nice big frames on them but no flesh. If the season had been as usual for grass and water they would have easily weighed 1,200 lbs. this fall. They should be put on good grass as soon as possible.

"Yours truly,

"D. W. WRIGHT."

Defendant testified that in answer to this letter he received a letter from the president of the bank, which he had lost and was unable to produce, and of which he had no copy. He was thereupon permitted to testify to its contents which he gave as follows:

"Well, answer to the letter to them, they just replied contents noted, and the man that acted for them as their agent to look after those matters for them was out and would be in in a few days and as soon as he returned they would send him down and any transactions that I and him might make would be perfectly satisfactory to them."

Defendant also testified that Davis brought with him a letter of introduction from the bank, at the time he took possession of the cattle, and that this letter had also been lost or destroyed and he had no copy of it. Thereupon he was permitted to testify from his memory of its contents which he gave as follows:

"Well, as I stated, this is to introduce to you our man Davis, who will represent us in this cattle business, and anything he should do or you and him should do in the transaction that would transpire between you two would be satisfactory to us; satisfactory to the bank; that was about the substance of it."

It is in evidence by both parties that Davis had the note and mortgage, and also defendant's letter of September 7, 1900, in his possession when he took possession of the cattle.

Defendant's evidence is that when Davis came to his place he had the cattle in a dry lot and was feeding them on green corn, and after much dickering and making of several propositions by him to Davis, and after Davis had repeatedly examined the cattle, he (Davis) finally agreed to take the cattle in full payment of the note, and to pay a feed bill of sixty-five dollars which defendant owed for hay he had purchased and fed to the cattle the previous winter. That after making this agreement, Davis took possession of the cattle, hired pasture for them, paid the feed bill of sixty-five dollars and subsequently hired pasture of him (defendant) and put the cattle on it and kept them there until he shipped them to Kansas City. Over the objections of the plaintiff, he further testified that at the time Davis took possession of the cattle there were fifty-two head (two of the original fifty-four having died) and that they would have averaged a thousand pounds in weight and were worth from four and one-half to four and three-quarters cents per pound, and when the cattle were sold by Davis, they were worth more on the market than was due on the note. Over the objection of plaintiff, defendant's wife testified (by deposition) corroborating all of the material part of the evidence of the defendant.

The evidence on the part of the plaintiff is that A. Caldwell was the president of the plaintiff bank and the principal officer in its management; that all the correspondence of plaintiff in respect to the note and cattle was conducted by him, and letter-press copies of all letters written by him to defendant were kept; that he wrote neither of the letters claimed to have been received by defendant and lost, and that the letter-press books of the bank (produced at the trial) contained no copy of either of the alleged letters. That Davis was a farmer and a cattle dealer living near Lawrence Kansas; that he never was at any time a general agent of the bank, but was employed occasionally to look after cattle for the bank upon which it had or was considering loans, but had never been employed or authorized by the bank to deal with any question of indebtedness on cattle, and that he had no such authority to deal with defendant. That he was authorized to look after the cattle and had nothing to do with defendant's indebtedness to the bank; that all questions of indebtedness to it had been uniformly passed on by...