Green v. Edmonds

• Decision Date: 07 November 1922
• Docket Number: No. 17105.,17105.
• Citation: 245 S.W. 378
• Parties: GREEN v. EDMONDS et al.
• Court: Missouri Court of Appeals

245 S.W. 378

GREEN v. EDMONDS et al.

No. 17105.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Rehearing Denied November 23, 1922.

Appeal from Circuit Court, Pike County; E. B. Woolfolk, Judge.

"Not to be officially published."

Action by A. J. Green against George E. Edmonds and another. Judgment for plaintiff, and defendants appeal. Reversed.

Hostetter & Haley, of Bowling Green, and Robert A. May, C. Louisiana, Mo., for appellants.

Pearson & Pearson and D. A. Ball, all of Louisiana, Mo., and Guy M. Wood, of Bowling Green, for respondent.

BECKER, J.

This is an action for damages for an alleged conspiracy between Joe Edmonds and his uncle Charles E. Edmonds, defendants below, in the sale of mortgaged property, whereby the mortgagee was deprived of his lien upon the personal property set out in a chattel mortgage.

The case was tried to the court and a jury, resulting in a verdict for the plaintiff in the sum of $2,500. From the resulting judgment, the defendants appeal.

The petition is quite lengthy, and it is unnecessary to set forth even an epitome of it here. The answer is a general denial.

The testimony adduced at the trial is voluminous—that adduced on behalf of the plaintiff and that of the defendants being in conflict on a number of matters, but in accord and harmony upon most of the important facts in the case.

Since we have reached the conclusion that appellants' first assignment of error, namely, that the court erred in overruling their separate demurrers offered at the close of the entire case, is well taken, we set forth the facts as they appear from the entire record before us, stating them in the light moat favorable to plaintiff.

In May, 1918, plaintiff was a banker in the town of Estancia, N. M. Defendant George Edmonds then owned and operated a cattle ranch within a few miles of Estancia and borrowed $4,000 of plaintiff, for which he gave his note secured by a chattel mortgage on a number of cattle then pasturing on his said ranch. The cattle described in and covered by the mortgage were all branded with a V on the right hip and an X on the right shoulder. The following August, while said mortgage was still in force, on account of a drouth and scarcity of pasturage in New Mexico, defendant George Edmonds, with the consent of plaintiff, shipped a portion of the mortgaged cattle to Pike county, Mo. Mrs. S. A. Edmonds, the mother of defendant George Edmonds, who owned a large cattle ranch adjoining that of her son George in the state of New Mexico, and had a large number of cattle thereon, shipped a number of her cattle to Pike county, Mo., at the same time that George's cattle were shipped. Her cattle, however, were differently branded. In the entire shipment there were 85 head of cattle which were branded with a V on right hip and an X on right shoulder.

Before shipping the cattle to Missouri, defendant George Edmonds made a trip to Pike county, Mo., to look for pasture. He visited his uncle, Charles Edmonds, the other defendant herein, who was and is a farmer, stock raiser, and large landowner in Pike county, Mo. George Edmonds arranged with Charles Edmonds to secure for him the necessary pasture for George's and his mother's cattle, which pasture Charles Edmonds did secure from J. B. Boatman, president of the Riverland Farms Company. George Edmonds induced his uncle Charles Edmonds to go back to New Mexico with him and buy cattle, which could be bought cheaply on account of the shortage of pasture. After reaching New Mexico, Charles Edmonds bought 51 head, of cattle and shipped them to Pike county, Mo., at the same time the cattle of George Edmonds and those of his mother, Mrs. S. A. Edmonds, were shipped. Plaintiff was present when George Edmonds' cattle were loaded at Lucy, N. M., and had, according to George Edmonds, promised to advance the freight for the shipment but, at the last moment, refused to do so and Charles Edmonds, then present, at the request of George, agreed to and did advance the money to pay the freight of the cattle shipped by both George and his mother.

Under the laws of New Mexico the owner of cattle is required to register with the state cattle inspector his brand, and before cattle can be shipped out of the state, permission of such inspector must be obtained, as well as a certificate showing the number of cattle shipped, the brands on the cattle, and the owners thereof, and by whom shipped. Such a certificate was obtained by defendant George Edmonds from the state cattle inspector of New Mexico on August 9, 1918, at the time the mortgaged cattle and the other cattle referred to were loaded on the cars for shipment to Pike county, Mo. This certificate shows that 85 head of cattle covered by the mortgage of plaintiff, and branded as therein described with a V on the right hip and an X on the right shoulder, were shipped by George Edmonds, besides 25 head of his own cattle not covered by plaintiff's mortgage, and of different brands than those included in the mortgage. Two or three of the cattle died in transit; the rest were placed upon a large pasture owned by the Riverland Farms Company in Pike county, Mo. Some 10 or 15 of the cattle mired in the drainage ditch on the pasture land and died, and there is testimony to the effect that some cattle strayed away and were lost.

After a while this pasture gave out, and George Edmonds was directed by his mother, Mrs. S. A. Edmonds, to, and did, on the 7th day of October, 1918, ship to the St. Louis market the remaining cattle belonging to his mother, consisting of 93 head. These cattle were shipped in the name of defendant Charles Edmonds, for the reason that Charles Edmonds was a large shipper of cattle from Pike county to the St. Louis market and it was thought that by shipping them in his name and he handling the shipment for Mrs. S. A. Edmonds, a better price could be obtained for them. None of these 93 bead of cattle were covered by plaintiff's mortgage. In sorting out these cattle for shipment, various witnesses testified that they were particularly careful not to get any of the mortgaged cattle in the shipment, and that none of the V cross-branded cattle were included in this shipment.

The cattle remaining on the pasture in Pike county were doing very poorly. The grass had given out, and the cattle were eating acorns and passing blood. On November 4, 1918, George Edmonds wrote plaintiff telling him of the condition of the cattle, and that it was necessary to sell them as soon as possible, and that, since plaintiff had the chattel mortgage recorded in Pike county, he (George Edmonds) could not sell the cattle, and requested the plaintiff to send him a release so that he could dispose of the cattle promptly when he had a sale for them.

In response thereto plaintiff made out a draft on the defendant George Edmonds for $4,200, which covered the amount of the said defendant's note and interest up to November 25, 1918, and attached a release to this draft for the cattle covered by the chattel mortgage and mailed these papers to the Mercantile Bank of Louisiana, Mo., and notified the defendant George Edmonds to this effect by letter, in which, among other things, plaintiff stated that "if you can sell them, you can take up this draft and get the release."

"If you want to ship I halve asked the bank to see to the cattle being shipped out in our name and the money promptly deposited in the Mechanics' National Bank in St. Louis. Now this will allow you absolute freedom to handle the stuff as it should be handled, and we trust that you will sell at once, as we want to get the note and your other debts cleaned up as soon as possible."

On November 14, 1918, after the receipt of the letter from plaintiff to George Edmonds informing him that he had sent the draft to the bank together with a release, George Edmonds made an alleged sale of the remaining cattle, numbering 74 head, to his brother Joe almonds for $1,800, payment for which was made by Joe Edmonds as follows: $1,000 in cash (obtained by Joe Edmonds discounting his note at a bank for like amount), end his assuming the payment of $545 to Charles Edmonds as part of the freight charges advanced by said Charles Edmonds at the time the cattle were shipped from New Mexico to Pike county, and also by Joe assuming the bill for pasturage for the cattle in Pike county, amounting to $250. There is testimony that Charles Edmonds, the other defendant in the case, received the $545 as a repayment to him of part of the freight charges advanced by him, but the record is silent as to what, if anything, was ever actually paid for pasturage.

The record discloses that whilst Joe Edmonds made this alleged purchase of the 74 head of cattle...