First National Bank of Mexico v. Ragsdale

• Decision Date: 24 December 1902
• Citation: 71 S.W. 178,171 Mo. 168
• Parties: FIRST NATIONAL BANK OF MEXICO, Appellant, v. CLARENCE C. RAGSDALE
• Court: Missouri Supreme Court

71 S.W. 178

171 Mo. 168

FIRST NATIONAL BANK OF MEXICO, Appellant, v. CLARENCE C. RAGSDALE

Supreme Court of Missouri, First Division

December 24, 1902

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

W. M Williams for appellant.

(1) The court committed manifest error in giving defendant's sixth instruction. It stands upon precisely the same principle as the erroneous ruling of the trial court, for which the judgment was reversed upon the former appeal. This instruction is not predicated upon the theory that the cattle did not belong to Crockett B. Ragsdale, but notwithstanding they may have been his property at the time the mortgage was given, and were held by defendant as his agent when the suit was instituted, still the jury were told that the verdict must be for defendant, if Crockett B. Ragsdale executed the mortgage for the purpose of defrauding any person to whom he could sell the note, and had no definite cattle in mind when the mortgage was made, and the description therein did not suit and was not intended for the cattle in controversy. Bank v. Ragsdale, 158 Mo. 680; Harris v Kennedy, 4 N.W. 851; Tyler v. Hall, 106 Mo 313; 1 Jones on Mortgages (2 Ed.), 683; Bank v. Bank, 50 Mo.App. 92. (2) If defendant held the cattle as agent of Crockett B. Ragsdale, and there was certainly evidence tending to prove that fact, it was error to tell the jury that he might defeat a recovery under the mortgage on the ground of his principal's fraud. A party can not take advantage of his own wrong. (3) Defendant's fifth instruction is erroneous, and in conflict with the rule laid down by this court, upon the former appeal, to govern the retrial of the cause. It was not proper to tell the jury that if the mortgage was not intended at the time it was given by C. B. Ragsdale to cover the cattle taken under the writ of replevin, the verdict should be for the defendant, regardless of the ownership of the cattle at the date of the mortgage. The mortgage should be held to apply to these cattle until Crockett B. Ragsdale, or his agent, "produces some evidence to show that he had another lot of cattle filling that description, and that it was the lot of cattle covered by the mortgage." Bank v. Ragsdale, 158 Mo. 680. (4) Defendant's fourth instruction should not have been given. Crockett B. Ragsdale advanced $ 2,165 upon a mortgage held by J. R. Johnson on some cattle claimed by defendant, which were subsequently sold, and out of the proceeds the cattle involved in this suit were, in part, paid for. In order to explain why he was entitled to Crockett Ragsdale's money advanced on this mortgage, and why the cattle were not liable for the mortgage debt, defendant stated that in April, 1895, he contracted to sell the cattle to Crockett Ragsdale at $ 40 per head, to be delivered between the first and twentieth of August, and that they were not accepted or paid for, and when he sold them in February following, the loss on the cattle and the expense of feeding them exceeded the mortgage debt. (a) It does not appear that any binding contract of sale was ever made. There was no memorandum in writing of the sale; no delivery of the cattle, and no part payment of the purchase price. Harvey v. Joint Stock & Ben. Ass., 39 Mo. 211; Palmer v. Ellsberry, 79 Mo.App. 570. (b) It was erroneous to tell the jury that, notwithstanding Crockett Ragsdale paid the mortgage of $ 2,100, yet if the amount so paid was no more than defendant's loss on account of the cattle going down in the market, and the expense of keeping them, defendant was entitled to the entire proceeds. The cattle were not sold in August, the date fixed for their delivery to Crockett B. Ragsdale. There was no evidence of the market price at that time. Defendant could not keep the cattle until February, 1896, and then sell them and hold Crockett B. Ragsdale for the expenses and losses as shown by a sale at that time; and the fourth instruction should not have told the jury that he could do so. The sale was too remote from the date fixed for the delivery to be made the basis of damages against Crockett B. Ragsdale for failing to take the cattle in the preceding August. Rickey v. Tenbroeck, 63 Mo. 567; Anderson v. Frank, 45 Mo.App. 486. (5) (a) The seventh instruction improperly singled out particular parts of the evidence and directed the jury's special attention thereto, and was misleading. (b) But, in addition, it should not have been given because it ignored the question of estoppel, arising from the actions of plaintiff and Latimer induced by the admissions referred to in said instruction. If defendant disclaimed ownership of the cattle, and admitted that they belonged to Crockett B. Ragsdale, and were covered by the mortgage, and induced the plaintiff and Latimer to act upon these representations, it is not true that no effect should be given to such admissions, if the jury should find that defendant was in fact the owner of the cattle. His admissions, acted upon by the other parties, can not be withdrawn to their injury. State ex rel. v. Castille, 51 Mo.App. 143; Reynolds v. Kroff, 144 Mo. 443; Raley v. Williams, 73 Mo. 310; Tyler v. Hall, 106 Mo. 313. (c) It was unnecessary in this action to plead the facts relied upon as constituting the estoppel. Tyler v. Hall, supra; Bank v. Ragsdale, supra.

Geo. Robertson for respondent.

(1) Plaintiff failed to establish any title to the cattle in controversy. It is a universal rule that the plaintiff in replevin must recover upon the strength of his own title and not upon the weakness of that of his adversary. Gartside v. Nixon, 43 Mo. 138; Sheble v. Curdt, 56 Mo 437; Summons v. Austin, 36 Mo. 307; Cobbey on Replevin, sec. 99; Eastern v. Flemming, 78 Ind. 116; Reinheimer v. Hemingway, 35 Pa. St. 432; Stanley v. Neale, 98 Mass. 343; Coodman v. Kennedy, 10 Neb. 270; Holler v. Colson, 32 Ill.App. 324; Kennedy v. Dodson. 44 Mo.App. 550; Moore v. Carr, 65 Mo.App. 64; Springfield v. Shackelford, 65 Mo.App. 364. (2) The description in the mortgage is not suited to the cattle taken under the writ of replevin. On December 13, 1895, Crockett Ragsdale did have on the Beagless farm in Audrain county, 133 head of feeding cattle on feed suiting the description contained in the letter sent with the mortgage to Latimer. One hundred head of the cattle taken under the writ of replevin were on December 13, 1895, on the farm of William Dyer in Callaway county and twenty of them were in the possession of the defendant on his farm in Ralls county, mixed with other cattle of his own and those of his wife of similar description, and instead of being on feed and weighing 1,000 pounds, were yearling stock cattle and would weigh from 550 to 600 pounds. The proof, therefore, shows that the cattle taken under the writ of replevin were not the cattle described in the mortgage. Authorities, supra, point 1; Bank v. Ragsdale, 158 Mo. 680; Stonebreaker v. Ford, 81 Mo. 532; Hughes v. Menefee, 29 Mo.App. 192. (3) The statements in the motion for new trial that "the court erred in admitting improper evidence over plaintiff's objections" and that "the court refused proper evidence offered by plaintiff," are not sufficient written specifications of error within the meaning of section 640, Revised Statutes 1899, to constitute a cause for motion for new trial. Thompson on Trials, secs. 2754 to 2756; Heine v. Morrison, 13 Mo.App. 577; Ray v. Thompson, 26 Mo.App. 431. In State v. David, 159 Mo. 531, it is there held that the assertion in the motion for new trial that "the court erred in admitting incompetent and immaterial evidence on the part of the State and in excluding competent and material evidence offered by defendants" are assignments of such a general character as to be insufficient without more specific reference to call the attention of the court to what evidence is meant. (4) The defendant's fourth instruction is not error. Although Crockett Ragsdale may have made a payment on the cattle, yet if he did not pay or offer to pay for them, from August 1 to August 20, the title never passed to him, and he forfeited what he had paid. Crockett Ragsdale's failure to pay the remainder going on the cattle caused him to forfeit all he had paid. Felix v. Berington, 52 Mo.App. 403; Bishop on Contracts, sec. 1349; Dobbins v. Edmonds, 18 Mo.App. 316. (5) Admitting as true all that Latimer claims as to defendant's admissions, there is no estoppel, and plaintiff's first instruction was properly refused. Latimer does not say that he told defendant he had indorsed the note or had incurred any liability on it. The note at the time of the meeting at Paris belonged to this plaintiff. Latimer's control was gone, and it does not appear that he was in any position to do anything or intended doing anything or that defendant prevented him from taking any steps. Bates v. Perry, 51 Mo. 499; Brown v. Miller, 46 Mo.App. 1; Bartlett v. Roberts, 66 Mo.App. 125; Burke v. Adams, 80 Mo. 504; Rogers v. Marsh, 73 Mo. 64; Jones v. McPhilips, 82 Ala. 116; Stevens v. Dennett, 51 N.H. 333; Brown v. Brown, 30 N.Y. 541. (6) The verdict of the jury is based upon substantial evidence in the case. In fact, the only evidence in the case bearing upon the ownership of the cattle is to the effect that they were the property of defendant. The appellate court will not disturb the verdict of the jury even if there is slight evidence to sustain it. Watts v. Douglass, 10 Mo. 676; Coudy v. Railroad, 85 Mo. 79; Price v. Evans, 49 Mo. 396; Rea v. Ferguson, 72 Mo. 225. (7) There was no error materially affecting the merits of the case and the verdict is for the right party, and therefore the judgment of the circuit court should be affirmed. Sec. 865, R. S. 1899; Brown v. City of Liberty, 131 Mo. 372; Comfort v....