Herr v. Denver Milling & Mercantile Co.

• Decision Date: 08 November 1889
• Citation: 13 Colo. 406,22 P. 770
• Parties: HERR v. DENVER MILLING & MERCANTILE CO.
• Court: Colorado Supreme Court

22 P. 770

13 Colo. 406

HERR v. DENVER MILLING & MERCANTILE CO.

Supreme Court of Colorado

November 8, 1889

Commissioners' decision. Error to superior court of Denver.

C. B. Whitford, for plaintiff in error.

L B. France, for defendant in error.

REED C.

An action in the nature of an action in trover, to recover the value of wheat, tried in justice's court, from which an appeal was taken to the superior court of the city of Denver. On April 29th a trial was had by the court without a jury resulting in judgment for the defendant. A motion for a new trial was made, and denied. There is but little controversy in regard to the facts. The principal contention is in regard to the law applicable to the facts. It appears that Mrs. F E. Sweetzer, a married woman, living with her husband, leased from the Platte Land Company 160 acres of land, subleased 80 acres, and, with her husband, put the other 80 acres into wheat. Some time prior to September 1, 1884, R. B. Sweetzer (the husband) and F. E. Sweetzer were, or one of them was, indebted to one S. H. Brackbill, and had jointly executed to him a promissory note, and secured it by chattel mortgage. Brackbill wanting his money, an arrangement was made whereby plaintiff Herr was to take up the note, and the Sweetzers were to make a new note to him, to be secured by chattel mortgage upon the same personal property formerly mortgaged to Brackbill; among which was the 80 acres of wheat, on the ground before spoken of. A note was drawn September 1, 1884, for $429.20, payable to the order of plaintiff, executed by both the Sweetzers, and across the note was written: 'Secured by chattel mortgage on wheat, teams, etc.' An attempt was made to make and execute a chattel mortgage, and the paper executed appears to have been regular, except that there was no grantee in the conveyance; the space where it should have been being left blank. Why the name of the grantee was left out, there is no attempt to explain. When, if ever, the grantors discovered the defect is not disclosed; but it appears in the testimony of plaintiff that they regarded it as a valid and existing mortgage on the wheat, at or about the time of the delivery of the wheat out of which this contention arose. It is shown that Sweetzer hauled, delivered, and sold to defendant four loads, as his own and in his own name, drawing a small sum of money and taking milling receipts to himself for the balance, leaving about $100 due on the price of the wheat. The evidence in regard to the notice to defendant is very meager. It is not claimed that defendant had any knowledge in reference to the claim of the plaintiff until after the wheat was bought and delivered. There is no evidence of plaintiff's notifying defendant of his supposed rights, or of having any conversation with him at all. The only notice or conversations on the subject testified to were those of plaintiff's brother, T. W. Herr, and it nowhere appears that he was authorized, or the agent of plaintiff. That G. E. Smith, a witness, and party who purchased the wheat, was the agent of defendant, is admitted. The evidence on the subject of notice is that of T. W. Herr and J. K. Mullen. Herr testified as follows: 'I had a conversation with the agent of defendant in reference to this matter. It was with the person in charge of the mill,--I think it was Mr. Smith. In the conversation I had with Smith at the mill I asked him if he had bought wheat from a man named Sweetzer. He said he had. I asked him how much. He said four loads. Subsequent to the interview with Mr. Smith, I had a conversation with J. K. Mullen in regard to this transaction. I don't remember where I first saw him about it; but he spoke about it once on Curtis street, in front of the post-office, and he said they had about $100 in their hands, or something over $100; that it was immaterial who he paid it to; that he had been garnished by somebody, but he did'nt know who it was. Before the commencement of this suit I notified the defendant that this wheat was ours. I did so at the mill, at the time I spoke of before. I told Mr. Smith that the wheat was ours,--that my brother had a chattel mortgage on it; and I showed him the chattel mortgage. I did not notice that it had no grantee in it at that time. I showed him the chattel mortgage, and told him that the wheat had all been turned over to us, and that it was our wheat, and that he should not pay Sweetzer any money on account of it. At that time he told me he had made some little advancement on it,--a few dollars,--but that he would not pay more until he knew they had a right to it; or something to that effect. I made a demand on the defendant for the price they agreed to pay Sweetzer, and asked him to pay me. He said he would see about it. They never paid anything. I went afterwards, and they said they were garnished, and they could not pay now. I told the defendant where the wheat came from; showed them the chattel mortgage; that the quarter section of wheat belonged to Mrs. Sweetzer. It was about the last of September, 1884, that I had this conversation with Mr. Smith. I don't know that he said he bought the wheat of Sweetzer, but he said Sweetzer had delivered four loads there. When I asked him for the money, and to pay us, he said the receipts were out for it. I can't remember how long after the wheat had been delivered that I had this conversation with Smith. It may have been two or three days, or a week. I am not certain. I got no wheat from Sweetzer after that conversation with Smith. Sweetzer left the country.' J. K. Mullen testified: 'Am acquainted with R. B. Sweetzer by meeting him a few times. He was farming in the fall of 1884. In the fall of that year our manager bought wheat of him. It was in September, 1884. He brought the wheat to the mill in our sacks, and dumped it into the hopper outside, with other wheat. We only paid him $11.20 on that sale. Delivered him receipts for the wheat. We bought no wheat from Sweetzer after a conversation had with Mr. Herr in relation to the wheat. That conversation is the first I ever heard of Mr. Herr having a claim on it. At that time the wheat had been delivered, and the receipts received. Mr. Herr came down to see me about this matter. He gave notice that he had a claim on it. He saw me and talked with me about it. A good while after I told Mr. Herr that we had the money there, and would pay it to whoever was lawfully entitled to it. The money is still in our hands, except the $11.20.' (The garnishee process from the county court, and the summons in this case, were both served on the same day. Witness could not state which was first served.) 'Mr. Sweetzer came, and demanded the money, and we notified him of the fact that Mr. Herr had notified us. He left something there in writing; and we notified Mr. Sweetzer we could not pay him until the matter was settled in the courts.' It appears from the testimony that no sacks were furnished by plaintiff at the time of threshing, as required by Sweetzer. Strong, a witness, testified that he got for himself 500 sacks of the defendant, 100 of which he let Sweetzer have. It appears that the wheat sold defendant was delivered in those sacks. The defendant put in evidence the transcript of a record and judgment in the county court, wherein the W. J. Kinsey Implement Company obtained judgment by default against R. B. Sweetzer, for $111.65 and costs, on the 15th day of October, 1884; that the Denver Milling & Mercantile Company had been served with garnishee process on the 10th day of October, 1884, whereby it was commanded to retain possession of money and property in its hands belonging to R. B. Sweetzer, that it might be dealt with according to law. Although the facts are few and easily understood, and the testimony not contradictory, the case is one of some difficulty; the controversy having arisen between the party assuming to be the mortgagee and a third party,--the supposed mortgagor having left the country. All the evidence in support of the mortgage, and the doings, and declarations, and acts of the parties under it, comes necessarily from the plaintiff.

The first question to be determined is: Was there a delivery or transfer of the possession of the wheat by the mortgagors to the plaintiff, under the mortgage, previous to the delivery of the wheat by R. B. Sweetzer to the defendant? Theo. W Herr, brother of plaintiff, said: 'Mrs. Sweetzer turned the wheat over to me.' There is no evidence of any agency, or of any authority from the plaintiff to the Sweetzers to turn the wheat over to him, or to the witness receiving it for him. There is no evidence of any attempted transfer of possession to plaintiff. All through the witness says, in speaking of it, 'me,' or 'I,' or 'we,' as if he were the party, or the transaction was one in which he and plaintiff were jointly interested. Unless the agency of T. W. Herr is presumed, as it was not proved, the discussion of this part of the case might end here. There is no proof of any demand on the part of the plaintiff for possession, or any attempt or intention on the part of the Sweetzers to deliver to him. Assuming that he was the agent, and the proper person to transact the business, we find his statement that Mrs. Sweetzer did turn the wheat over to him was merely his conclusion, and one not warranted by the facts. He...