Gould v. Hill

• Decision Date: 23 September 1926
• Citation: 251 P. 167,43 Idaho 93
• Parties: GLENN C. GOULD and ELIJAH FROST, Respondents, v. FRED J. HILL and PINGREE CATTLE LOAN COMPANY, Defendants, and PORTLAND CATTLE LOAN COMPANY, Appellant
• Court: Idaho Supreme Court

251 P. 167

43 Idaho 93

GLENN C. GOULD and ELIJAH FROST, Respondents, v. FRED J. HILL and PINGREE CATTLE LOAN COMPANY, Defendants, and PORTLAND CATTLE LOAN COMPANY, Appellant

Supreme Court of Idaho

September 23, 1926

ANIMALS-AGISTER'S LIEN-FEEDER'S CONTRACT-SURRENDER OF POSSESSION-ACTION TO FORECLOSE LIEN-PLEADING-PROPER PARTIES-CHATTEL MORTGAGES - LIEN SUPERIOR TO SUBSEQUENT MORTGAGE - EVIDENCE - FINDINGS - ASSIGNMENTS OF ERROR DEEMED WAIVED.

1. An agister's lien is strictly statutory, no such lien existing at common law.

2. Under C. S., sec. 6412, persons feeding cattle for compensation to be determined at so much per pound are entitled to agister's lien therefor, in view of section 9444, providing for liberal construction of all statutes.

3. Persons feeding cattle under feeder's contract are not such co-owners as would defeat an agister's lien, under C. S., sec. 6412, as against subsequent mortgagee taking mortgage from one holding bill of sale from owner only.

4. Persons feeding cattle under feeder's contract, who stipulated by written contract for sale of cattle and temporary disposition of money pending determination of their respective claims, have not voluntarily surrendered possession so as to have waived liens under C. S., sec. 6412.

5. Complaint alleging agister's lien on cattle for feeding them under contract, and that one claiming under chattel mortgage had a lien subsequent and subordinate to plaintiff's lien, and setting up stipulation in writing at time plaintiffs had possession of cattle, providing for their sale and disposition of proceeds pending determination of rights of parties, sufficiently states cause of action.

6. Under C. S., sec. 6646, joining original owner and his vendee together with one holding chattel mortgage on property, in action to foreclose agister's lien on cattle under feeding contract, is not a misjoinder of parties.

7. Failure of complaint in action to foreclose agister's lien to state definitely amounts received as result of sale of cattle under stipulation for disposition of proceeds pending determination of rights was not ground for complaint where defendant received entire proceeds and made disbursements.

8. Plaintiff may recover if complaint states any cause of action entitling him to relief at law or in equity.

9. Where persons surrendered portion of cattle being fed under feeding contract on express promise that they would be paid in cash for their interest therein at time of delivery, and check given therefor was later refused, there was not such voluntary surrender of possession as would deprive them of lien, under C. S., sec. 6412.

10. Surrendering possession of portion of cattle being fed under feeder's contract would not defeat lien under C. S., sec 6412, on remainder of animals, since lien becomes impressed on entire mass or herd.

11. Where oral contract for feeding cattle was made on same day as written contract and very shortly thereafter and referred to written one, it should be considered and treated as one contract, oral contract only amending or supplementing written one by changing number of cattle fed.

12. Generally, a common law or statutory lien, dependent on possession, is waived or lost by voluntarily and unconditionally parting with possession or control of property.

13. A lien is not waived or destroyed where there is an intention to preserve same, lienor only conditionally parting with possession.

14. Mortgagee cannot complain of agister's lien on cattle under feeding contract because of addition of cattle to herd other than those on which it held mortgage, where at time of final sale mortgagee received proceeds from all cattle thereby directly benefiting by transaction.

15. Persons feeding cattle under feeding contract, who had before executing contract made property statements admitting ownership of such cattle in contemplation of getting a loan to purchase them, were not thereby estopped from claiming agister's lien under feeding contract.

16. Persons feeding cattle under feeding contract and executing chattel mortgage on their feed and feed lots to insure good faith and proper performance of contract were not estopped thereby from claiming agister's lien on cattle.

17. Agister's lien for feeding cattle is paramount and superior to lien of chattel mortgage executed subsequently to feeding contract, where it appeared that representatives of mortgagee knew of feeding contract and consented to performance thereof.

18. In action to foreclose agister's lien as against owner and mortgagee, testimony relative to conversations of lienors with agents of mortgagee, and as to dealings with owners with whom mortgagee claimed to be in privity, held admissible.

19. Trial court need not make a finding on any issue immaterial to its decision.

20. Appellate court will not disturb or question findings of fact predicated on conflicting evidence where there is substantial evidence to support such findings.

21. Where no objection was made on court's failure to make certain additional findings of fact nor findings requested thereon, it will be presumed that such findings, if made would have been against appellant.

22. Assignments of error as to which there was no argument or citation of authorities with reference thereto will be deemed waived.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. W. A. Babcock, Judge.

Action for foreclosure of agister's lien and to determine priority of liens on cattle. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs to respondents. Petition for rehearing denied.

Merrill & Merrill, for Appellant.

The lien statute does not apply to furnishing feed and services under the circumstances of this case. (C. S., sec. 6412; Auld v. Travis, 5 Colo. App. 535, 39 P. 357; Jones on Liens, sec. 641; Vinal v. Spofford, 139 Mass. 126, 29 N.E. 288; Jackson v. Kasseall, 30 Hun (N. Y.), 231; Ingalls v. Vance, 61 Vt. 582, 18 A. 452; Lewis v. Tyler, 23 Cal. 364; Conklin v. Carver, 19 Ind. 226; Lord v. Collins, 76 Me. 443; McKee Livestock Co. v. Menzel, 70 Colo. 308, 201 P. 52; Bailey v. O'Fallon, 30 Colo. 418, 70 P. 755; Pearce v. Jennings, 94 Ala. 524, 10 So. 511; Bissell; v. Pearce, 28 N.Y. 252.)

If a lien were possible, it could only be enforced as provided by statute, or in the manner and for the amount provided in some agreement between the parties. The theory of the plaintiffs' case is not based upon the latter alternative. (C. S., sec. 6412; Greenawalt v. Wilson, 52 Kan. 109, 34 P. 403; Speth v. Brangman, 27 Ky. Law Rep. 295, 84 S.W. 1149; Griffith v. Grass, 108 Ky. 160, 55 S.W. 1077; Crismon v. Barse Livestock Co., 17 Okla. 117, 87 P. 876; Dale v. Council Bluffs Sav. Bk., 65 Neb. 692, 91 N.W. 526, 94 N.W. 983.)

The court erred in making his findings and particularly in failing to find on all material issues. (Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L. R. A., N. S., 1142; Brown v. Macey, 13 Idaho 451, 90 P. 339; Turner Agency v. Pemberton, 38 Idaho 235, 221 P. 133.)

The transaction between Hill and the plaintiffs was a joint venture whereby they became virtually joint owners of the cattle and cannot now assert an interest adverse to the appellants. (Chrismon v. Barse Livestock Co., supra; Sharp v. Johnson, 38 Ore. 246, 84 Am. St. 788, 63 P. 485; Auld v. Travis, supra; Ellison v. Tuckerman, 24 Colo. App. 322, 134 P. 163.)

J. H. Sherfey and Walters & Parry, for Respondents.

The services rendered by respondents and for which compensation is sought in this action are of the character for which a lien upon the animals pastured and fed is granted by the Idaho statutes. (C. S., sec. 6412; People v. Hunt, 1 Idaho 433; People v. Owyhee Mining Co., 1 Idaho 409; Parsons v. Wrble, 21 Idaho 695, 123 P. 638; Swain v. Fritchman, 21 Idaho 783, 125 P. 319; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280; McQueen v. City of Moscow, 28 Idaho 146, 152 P. 799; Mendilie v. Snell, 22 Idaho 663, 127 P. 550, 43 L. R. A., N. S., 731; Marnella v. Froman, 35 Idaho 21, 204 P. 202; sec. 3051, Cal. Civ. Code; Seale v. McCarthy, 148 Cal. 61, 82 P. 845.)

By reason of the agreement of the parties (respondents' exhibit "D") which was properly pleaded in the amended complaint, the appellant expressly consented that the questions of the existence, priority and amount of respondents' lien could be tested in an action such as this; because of this express agreement by appellant, respondents did not lose their lien on the cattle by surrendering possession thereof under the terms of this agreement; and since respondents' cause of action as set forth in the amended complaint was brought in reliance upon the agreement of the parties and is in conformity therewith, the amended complaint states a cause of action. (Lydell v. First Bank of Joseph, 65 Ore. 243, 132 P. 518; Becker v. Brown, 65 Neb. 264, 91 N.W. 178; Willard v. Whinfield, 2 Kan. App. 53, 43 P. 314; Kroll v. Ernest, 34 Neb. 482, 51 N.W. 1032; Weber v. Whetstone, 53 Neb. 371, 73 N.W. 695; Barse Livestock Com. v. Adams, 2 Ind. Ter. 119, 48 S.W. 1023; Everett v. Barse Livestock Com. Co., 115 Mo.App. 482, 88 S.W. 165; Bates v. Capital State Bank, 21 Idaho 141, 121 P. 561; Speth v. Brangman, 27 Ky. Law Rep. 295, 84 S.W. 1149.)

Since appellant in its brief has not argued nor cited authorities upon, nor pointed out specifically what the alleged error of the trial court is, as to certain assignments of error, they are deemed to have waived these assignments, and the court will not consider them. (Bain v. Olsen, 39 Idaho 170, 226 P. 668; Hardy v. Butler, 39 Idaho 99, 226 P. 669.)

The uncontradicted evidence and the finding of the trial court is to the effect that appellant took its chattel mortgage upon the cattle in question...