Hanna State & Savings Bank v. Matson, 2018

• Decision Date: 22 March 1938
• Docket Number: 2018
• Parties: HANNA STATE & SAVINGS BANK v. MATSON, ET AL
• Court: Wyoming Supreme Court

77 P.2d 621

53 Wyo. 1

HANNA STATE & SAVINGS BANK v. MATSON, ET AL

No. 2018

Supreme Court of Wyoming

March 22, 1938

APPEAL from the District Court, Carbon County, V. J. TIDBALL, Judge.

Action to recover on notes and for foreclosure of a chattel mortgage by the Hanna State & Savings Bank against Carl Matson and Gust Nelson. From the judgment, Gust Nelson appeals.

Affirmed.

For the defendant and appellant, there was a brief by A. R. McMicken and Eph U. Johnson, both of Rawlins, and oral argument by Messrs. McMicken and Johnson.

The judgment is contrary to the evidence. The doctrine of confusion of goods is a rule which under some circumstances forfeits the right of a person in goods which he has wrongfully intermingled with goods of another in such a way that the separate interests cannot be ascertained or distinguished. 12 C. J. 491; In re Thompson, (Iowa) 145 N.W. 76; Ayre v. Hixson, (Ore.) 98 P. 515; Clay Robinson and Company v. Larson, (Me.) 146 N.W 1095. There is a distinction between fraudulent and negligent confusions. Gonzales v. Ilfeld, (N. M.) 185 P. 1110; Page v. Jones, (N. M.) 190 P. 541; 10 A. L. R. 761; Edwards v. Wilson, (Wyo.) 219 P. 233; State Bank v. Bagley Brothers, (Wyo.) 11 P.2d 572. The confusion caused by the branding of the Pinedale cattle and the Radcliff cattle with the oarlock brand by Nelson, may be said to come under the first class, that is, confusion by the consent of the parties. Appellant's contention was that the confusion, or the intermingling of the cattle, was either by consent of the parties, or under an unintentional mistake of fact. Edwards v. Wilson, supra, Ayre v. Hixson supra, In re Thompson, supra, 12 C. J. 491. If the court agrees with appellant's contention, it will be necessary to determine the proportionate interest of appellant Nelson and the respondent bank in the cattle that were branded with the oarlock brand. The cattle which were carried along in the mortgages of Bennard and Matson to the bank are the increase of the cattle that were intermixed from the sources designated as Leo Sheep Company, Pinedale and Spearhead and oarlock brand. It is submitted that the judgment of the court below is erroneous in its application of the law to the facts in this case. The trial court erred in its special findings of fact and conclusions of law, to the effect that Nelson in causing the Leo Sheep Company, Pinedale and Moles cattle to be branded with the oarlock brand, was estopped from asserting his title to the Leo Sheep Company cattle and their increase. The court also erred in its special findings of fact and conclusions of law that plaintiff's chattel mortgage was a valid and subsisting lien on the cattle therein described, superior to any lien or interest therein of defendant Nelson. The court also erred in its judgment in foreclosing the chattel mortgage and ordering the property sold and the proceeds to be applied toward the payment of plaintiff's judgment, interest and costs. The court also erred in rendering judgment for the plaintiff and against the defendant Nelson.

For the plaintiff and respondent, there was a brief by Armstrong & Armstrong of Rawlins, and oral argument by Mr. L. E. Armstrong.

Appellant complains that the judgment is not sustained by sufficient evidence and all of the evidence is included in the record. As the review must be on the whole record, possible errors in the findings will not necessitate a reversal of the judgment, if the appellant was not prejudiced. Peterson v. Johnson, 46 Wyo. 473; Johnson Irrigation Company v. Ivory, (Wyo.) 24 P.2d 1053; Moshannon National Bank v. Iron Mountain Ranch Company, 45 Wyo. 265; Chesney v. Valley Live Stock Co., 34 Wyo. 378; Thex v. Shreve, (Wyo.) 267 P. 92. The findings of fact are not stated separately from the conclusions of law as contemplated by Section 89-1321, R. S., and it is not clear, whether that part of the judgment will be considered other than a general finding for the plaintiff. Hilliard v. Douglas Oil Fields, 20 Wyo. 201. There is no finding of fact to support the conclusion that under the agreement of December 1, 1920, Nelson retained title to the cattle purchased from the Leo Sheep Company, said agreement not being set out in the evidence. Babbit Bros. Trading Co. v. Sewing Machine Co., 62 F.2d 530; Citizens Bank v. Farwell, 56 F. 570; King v. Downey, (Ind. App.) 56 N.E. 680; Home Development Company v. Land Company, (Ind. App.) 196 N.E. 337; Firestone Tire & Rubber Co. v. Hart, (Vt.) 158 A. 90. In a conditional sale, the title remains in the seller until payment is made. 55 C. J. 1194; 17 L. A. R. 1422; Supply Company v. Thompson, (Wash.) 167 P. 95. In the case of cattle, title passes on delivery, in the absence of a reservation of the title, and no bill of sale or other instrument is necessary. Marston v. Rue, (Wash.) 159 P. 111; Lewis v. Lambros, (Mont.) 194 P. 152; Threshing Mach. Co. v. Bargabos, (Minn.) 172 N.W. 882; Van Winkle & Co. v. Crowell, 146 U.S. 42; 55 C. J. 1198. Rights reserved by the seller must be agreed to by the buyer in unmistakable terms, if the sale is to be conditional. Utah Association v. Buller, (Utah) 194 P. 127; 55 C. J. 1201, 1211. Conditional sales with forfeiture provisions are not favored by the law. Kuhn v. Groll, (Wash.) 203 P. 44. Where property is sold under contract and the seller later takes a mortgage on the property, the transaction is an absolute sale. Crewson v. Commercial Trust, (Okla.) 250 P. 521; Aultman & Co. v. Silha, (Wis.) 55 N.W. 711; McCormick Harvesting Co. v. Lewis, (Kans.) 35 P. 12; Sparkman v. Miller-Cahoon Co., (Idaho) 282 P. 273. Proof of a lien will not sustain an allegation of ownership. Randall v. Pearsons, (Nebr.) 60 N.W. 898. Appellant could not in any event claim a lien on the increase. Black Lumber Company v. Turk, (Wyo.) 62 P.2d 519. Under a conditional sale, loss follows ownership. Holt Company v. Jassaud, (Wash.) 233 P. 35, 38 A. L. R. 1312, 1317. The instrument was not filed for record as required by Section 98-1901, R. S. Martin's knowledge was not imputable to the bank. Hays Co. v. Pierson, 32 Wyo. 416. No renewal affidavits were ever filed. Graham v. Blinn, 3 Wyo. 746; Harle-Haas Drug Co. v. Rogers Drug Co., 19 Wyo. 35. Actual notice, in order to take the place of renewal or refiling, must be notice not only of the original mortgage but also of the fact that the mortgage debt has not been paid. 11 C. J. 544. In Wyoming an unfiled chattel mortgage is void as against creditors and subsequent mortgagees or purchasers in good faith. Bank v. Ludvigsen, 8 Wyo. 230. The judgment that appellant never parted with title, and that Matson never was the owner of said cattle purchased from the Leo Sheep Company is unsupported by any finding of fact or evidence. The failure of appellant to produce evidence as to the condition of the account raises the presumption that the evidence would have been unfavorable to him and his contentions. Corporation v. Hanson, (Wyo.) 157 P. 582; Hines v. Sweeney, (Wyo.) 201 P. 165; Hildebrand v. C. B. & Q. R. R., 45 Wyo. 175; Benedict v. Nat. Bank, (Wyo.) 13 P.2d 573; Howe v. Howe, (Mass.) 85 N.E. 945; Harold v. Toomey, (Wash.) 158 P. 986; 22 C. J. 111. Appellant assumed the burden of proving his ownership of the cattle. 42 C. J. 109; Bank v. Ford, (Wyo.) 216 P. 691. The burden was on appellant to prove payment. Hildebrand v. C. B. & Q. R. R. Co., supra; Selma Company v. U.S. 139 U.S. 560; Belding v. Belding, (Ill.) 192 N.E. 917; 22 C. J. 81. The trial court held that the appellant is estopped to assert any title to or interest in the cattle purchased from Leo Sheep Company, or the increase thereof. This was undoubtedly true under the evidence. 21 C. J. 1156; Grigsby v. Verch, (S. D.) 146 N.W. 1075; Ueck v. Meatz, (Mich.) 158 N.W. 888; Olsen v. Great Northern R. Co., (Minn.) 166 N.W. 331; Terry v. Haynes, (Okla.) 158 P. 1195; Ashley v. Pick, (Ore.) 100 P. 1103; Mohler v. Grange, 142 Ill.App. 357; Boice v. Corp., (Va.) 102 S.E. 591; Crowder v. Yovovich, (Ore.) 164 P. 576. The commingling of goods and chattels creates estoppel. Bank v. Kissare, (Okla.) 98 P. 433; Ayre v. Hixson, (Ore.) 98 P. 515; Hagan v. Cosper, (Ariz.) 292 P. 1020; Mahoney v. Citizen's Nat. Bank, (Ida.) 271 P. 935; Allis Company v. Elevator Company, (Kans.) 38 P.2d 138; Wellock v. Cowan, (Mich.) 224 N.W. 413; In re Thompson, (Iowa) 145 N.W. 76. The question of whether there has been such a confusion of goods as will prevent recovery is one of fact. Hutton v. Yolo Orchard Company, (Cal.) 258 P. 96. The authorities cited by appellant do not sustain his contentions.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

The Hanna State and Savings Bank, plaintiff and respondent, brought this action in May, 1935, to recover on three promissory notes for $ 370, $ 11,200 and $ 100, respectively, and for foreclosure of a chattel mortgage given as security. The defendants were Carl Matson, maker of the notes and mortgagor of the property, and Gust Nelson who was made a party because he claimed an interest in a part of the mortgaged property.

Matson answered by denying generally the allegations of the petition, but he had no real defense and has not appealed. Nelson in his answer alleged that he was the owner of the cattle described in the mortgage. The trial was to the court without a jury and resulted in a judgment against Matson for the debt, foreclosing the mortgage, and declaring that Nelson is barred from asserting any interest adverse to the plaintiff in the mortgaged cattle. Nelson has appealed, and attacks the part of the judgment that denies his asserted right.

The chattel mortgage was executed by Matson in November, 1933. The cattle claimed by Nelson are described in the mortgage as 210 head branded oarlock. They are...