George Adams & Frederick Co. v. South Omaha Nat. Bank

• Decision Date: 22 April 1903
• Docket Number: 1,821.
• Citation: 123 F. 641
• Parties: GEORGE ADAMS & FREDERICK CO. v. SOUTH OMAHA NAT. BANK OF SOUTH OMAHA, NEB.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F. 641

GEORGE ADAMS & FREDERICK CO. v. SOUTH OMAHA NAT. BANK OF SOUTH OMAHA, NEB.

No. 1,821.

United States Court of Appeals, Eighth Circuit.

April 22, 1903

T. J Mahoney (J. A. C. Kennedy, on the brief), for plaintiff in error.

W. W Morsman (H. C. Brome and A. H. Burnett, on the brief), for defendant in error.

This action was brought by the South Omaha National Bank, of South Omaha, Neb., the defendant in error, against the George Adams & Frederick Company, the plaintiff in error. In its complaint the plaintiff below alleged that on February 27, 1901, it was the qualified owner of 157 head of steers then feeding on the farm of John R. Manning, in the county of Wayne in the state of Nebraska, by virtue of a chattel mortgage given to the plaintiff by said Manning, who was the owner of the steers to secure the sum of $25,000 loaned by the plaintiff to said Manning, and duly filed for record in the office of the county clerk of said Wayne county on February 22, 1901; that on February 27, 1901, the defendant below took possession of the said 157 head of steers, at the place aforesaid, wrongfully, and wrongfully removed and sold the same and converted the proceeds to its own use, thereby depriving the plaintiff of its ownership therein; that the defendant sold the steers for the sum of $10,917.99; that the plaintiff had suffered damages by the wrongful act aforesaid in the sum of $10,917.99, for which amount it prayed a judgment, with interest thereon at the rate of 7 per cent. per annum from February 27, 1901.

The defendant below, in its answer, admitted that on or about February 22, 1901, John R. Manning had executed and delivered to the plaintiff a chattel mortgage upon a number of steers to secure the sum of $25,000 which was due to the plaintiff from said Manning, but it denied that by virtue of said chattel mortgage the plaintiff became the qualified owner of the steers mentioned in its complaint, and denied that at the time named in the plaintiff's complaint, or at any other time, the defendant had taken possession of any steers upon which the plaintiff had a chattel mortgage, or in which it had a special ownership, and denied that the defendant wrongfully took, removed, or sold any steers upon which the plaintiff had any lien, or in which the plaintiff had any special ownership or interest. For a second defense the defendant alleged the following facts, in substance: That on February 23, 1900, the said Manning, who was named in the plaintiff's petition, executed and delivered to the George Adams & Burke Company a note in the sum of $10,000, due six months after date, for that amount of money at that time loaned to him by the George Adams & Burke Company; that at the same time, to secure the payment of the note, Manning executed a chattel mortgage conveying to the George Adams & Burke Company 225 steers then in the possession of said Manning on his farm in Wayne county, in the state of Nebraska; that said note was subsequently and before maturity sold and indorsed by the George Adams & Burke Company, and that the indorsee thereof, by virtue of the sale, became the owner of the note, and continued to be the owner and holder until March 5, 1901, when it was paid; that on February 25, 1901, and March 5, 1901, said Manning, with the knowledge of said George Adams & Burke Company, shipped and caused to be shipped to Chicago, Illinois, in the name of John T. Frederick, the general manager of said George Adams and Burke Company, 157 steers, 'as one hundred and fifty-seven of the two hundred and twenty-five steers named and described in the said mortgage from said John R. Manning to the said George Adams & Burke Company,' and caused the net proceeds of the sale of said steers, to wit, the sum of $10,503.68, to be remitted from Chicago, Ill., to the said George Adams & Burke Company at South Omaha, Neb., to be applied in payment of the aforesaid note of said Manning to said George Adams & Burke Company; that on receipt of the sum last aforesaid and of a small additional sum from said Manning, which together made the full amount then due and owing upon said note of said Manning to said George Adams & Burke Company, the last-mentioned company paid over all of the money so received to the then indorsee and holder of said note, and then and there received the note, and canceled and surrendered it to John R. Manning as having been fully paid, and likewise canceled the aforesaid chattel mortgage which was given to secure the payment of said note; that during the period aforesaid, when the aforesaid acts were done, the said George Adams & Burke Company had no notice or knowledge of any kind whatever of any mortgage in favor of the plaintiff made by said Manning, and had no notice whatever of any claim of the plaintiff in or to any of said 157 steers; that the chattel mortgage referred to by the plaintiff bank in its petition did not describe or identify any of the aforesaid 157 steers, and was so inaccurate and defective in description that the filing of said mortgage for record did not impart notice to said George Adams & Burke Company of any claim of the plaintiff in or to any of said 157 steers. The defendant admitted, however, that said 157 cattle were the identical cattle on which plaintiff in its petition, claimed to have a special ownership by virtue of the chattel mortgage mentioned in its petition.

At the conclusion of the trial each party requested a peremptory instruction in its favor. The court sustained the plaintiff's motion in that behalf, holding that there was no contested issue of fact to be determined by the jury, and directing a verdict in favor of the plaintiff for the sum of $11,360.71, which was the sum that the defendant below had received for the cattle in controversy, together with interest thereon from the date of its receipt up to the rendition of the judgment. To reverse the judgment, the defendant below sued out a writ of error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The defendant below filed an assignment of errors embracing no less than 47 specifications of error, but, as the case has been presented for review, there are two principal questions, and one or two others that are incidental and collateral, to be considered and determined. The first of these questions is whether the plaintiff's petition stated a good cause of action; and the second is whether the case is one which should have been submitted to the jury for its determination.

Relative to the first of these questions, it is to be observed that the defendant did not demur to the petition when it was filed, but answered in the manner heretofore stated. The bill of exceptions shows, however, that at the commencement of the trial the defendant's attorney did object to the introduction of certain evidence on the ground that the petition did not state a cause of action, and that he renewed this objection at the conclusion of all the evidence, when he asked for a peremptory instruction in the defendant's favor. The objection to the petition, which is urged in this court and is founded on certain Nebraska decisions (to wit, Hill v. Campbell Comm. Co., 54 Neb. 59, 74 N.W. 388, and Raymond v. Miller, 50 Neb. 506, 70 N.W. 22), is to the following effect: That the action was in trover for the wrongful conversion of 157 head of steers; that such an action could not be maintained by the plaintiff unless it was entitled to the immediate possession of the property; that the complainant did not show such possession; that the allegation that the plaintiff was the 'qualified owner' of the 157 steers in question was a mere statement of a legal conclusion; and that for these reasons the petition did not show that the plaintiff was entitled to the possession of the steers, or that it had any right to sue in trover for their conversion.

The method of testing the sufficiency of the petition that was practiced in this case, by making an oral objection to the introduction of any evidence after a lengthy answer had been filed and the complaint had been treated as sufficient, is one that does not commend itself to the favorable consideration of the court, because such a mode of attack often operates as a surprise, besides tending to delay trials after the parties have incurred considerable expense in taking testimony and in procuring the attendance of witnesses, which might not have been incurred if the sufficiency of the complaint had been tested in the usual way, by a demurrer. When such a mode of challenging the sufficiency of a complaint is adopted, the pleading in question should be construed liberally. Merely technical defects of averment should be overlooked, and objections made thereto should be overruled, unless they are of a substantial or fundamental character; that is to say, unless there is a total failure to allege some matter which is essential to the relief sought. This is the rule that obtains in Nebraska, in which state this case was tried, as well as the rule which had been sanctioned by this and other courts. Roberts v. Taylor, 19 Neb.184, 188, 27 N.W. 87; Marvin v. Weider, 31 Neb. 774, 48 N.W. 825; Johnston v. Spencer, 51 Neb.198, 200, 70 N.W. 982; Glaspie v. Keator, 5 C.C.A. 474, 56 Fed.203, 211; Rush v. Newman, 7 C.C.A.136, 139, 58 F. 158; Laithe v. McDonald, 7 Kan. 261; Whitbeck v. Sees (S.D.) 73 N.W.915, 916.

Applying these rules of construction to the pleading in question, we cannot assent to the view that the averment that the plaintiff was 'the qualified owner' of the 157 steers in controversy was a mere allegation of a conclusion of law and that for that reason it should be wholly disregarded. An averment that one is the owner of certain described...