Hill v. Campbell Comm'n Co.

• Decision Date: 03 March 1898
• Citation: 54 Neb. 59,74 N.W. 388
• Parties: HILL v. CAMPBELL COMMISSION CO. ET AL.
• Court: Nebraska Supreme Court

54 Neb. 59

74 N.W. 388

HILL

v.CAMPBELL COMMISSION CO. ET AL.

Supreme Court of Nebraska.

March 3, 1898.

Syllabus by the Court.

1. One who converts the property of another is liable therefor.

2. Every one who aids and assists in the conversion of the chattels of a third person is liable for their value.

3. A mortgagee of chattels, who is out of possession, and not entitled to possession by his mortgage, cannot maintain an action against a stranger for conversion.

4. In an action by a mortgagee of chattels for conversion of mortgaged property, he must, in his petition, plead the facts which create his special ownership in the property, and show his right to the possession of the same.

Error to district court, Douglas county; Hopewell, Judge.

Action by John L. Hill against the Campbell Commission Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.McCabe, Wood & Elmer, for plaintiff in error.

Bartlett, Baldridge & De Bord, for defendants in error.

NORVAL, J.

Warren Fales resides in Cuming county, and is engaged in the business of raising, feeding, buying, and selling of cattle. He executed and delivered to the plaintiff, John L. Hill, three chattel mortgages, on 219 specifically described steers, then in the possession of Fales, in said county, to secure the indebtedness incurred for the purchase price of the cattle, which mortgages are described as follows: One dated March 15, 1892, to secure $463.96, duly filed for record on the 26th day of the same month; another dated April 6, 1892, for the sum of $2,860.52, which was duly recorded two days later; and the other was given May 21, 1892, for $1,440.82, which was duly filed for record six days after its date. Subsequently, on June 14, 1892, Fales gave to the Campbell Commission Company, of Chicago, one of the defendants herein, a chattel mortgage on 300 steers; and on November 4, 1892, Fales gave said company a second chattel mortgage, on 80 steers. On October 20, 1892, Fales executed and delivered to the defendants Foley & Chittenden, of South Omaha, a chattel mortgage on 170 steers, to secure an indebtedness of the mortgagor to said last-named firm. The evidence shows the cattle belonging to Fales, and on which he had executed mortgages as aforesaid, were shipped to, and sold by, the Campbell Commission Company, as follows: 80 head on January 18, 1893, and 243 head on January 27th of the same year. On the next day, 45 steers owned by Fales were shipped to South Omaha, and sold by the defendant Foley & Chittenden. Plaintiff contends that the foregoing shipments included 100 steers, upon which he held senior mortgage liens, and that said cattle were sold by defendants without plaintiff's knowledge and consent. This action was instituted in the court below, to recover damages for the conversion of cattle covered by plaintiff's mortgages. The defendants recovered verdicts upon the trial, and, from the judgment rendered thereon, plaintiff prosecutes a petition in error.

The record discloses that, at the trial, plaintiff, in open court, limited his claim to a recovery to the conversion of cattle by the defendants included in the shipment under the date of January 27th, already alluded to. The evidence contained in the bill of exceptions tended to show that said 243 head were shipped to, and sold by, the Campbell Commission Company, without plaintiff's knowledge or consent; that he held superior mortgage liens upon a portion of the cattle included in said shipment; that one Clausen, the agent and representative of the Campbell Commission Company, and Foley, of said firm of Foley & Chittenden, procured the cattle to be shipped, assisted Fales in cutting out the 243 steers from the remainder of the herd, in driving them to Pender, and in loading them on the cars at that place for shipment to Chicago. Foley and Fales went with the stock to Chicago, where the cattle were delivered to, and sold by, the Campbell Commission Company, and the proceeds were applied by the defendants to their own use.

Instructions 5, 6, 9, and 10, given by the court on its own motion, and defendants' eighth request, are criticised by counsel for plaintiff. The first four of these are in the language following: “(5) But, if you find from a preponderance of the evidence that there was some of the P. and K. cattle in the shipment of 243 head, you will then further inquire and determine how and under what circumstances, and by whom, the said shipment was made; and you are instructed that if said shipment was made by Warren Fales of his own volition, and without insistence or direction from the defendants, or either of them, then the defendants would not be liable in this action, and your verdict should be in favor of defendants. (6) To justify a verdict in favor of the plaintiff, it must appear from a preponderance of the evidence that defendants, or one of them, directed and caused said shipment to be made for their own use and benefit, and without the consent of the plaintiff, and that there were cattle in said shipment on which plaintiff held a first mortgage lien.” “(9) If said shipment of 243 head was made voluntarily by Warren Fales, and not by the direction of the defendants or either of them, the plaintiff cannot recover in this action. (10) The fact alone that James Foley assisted in assorting and loading the cattle, and went to Chicago with them, would not justify a verdict against him or any of the defendants. To hold the said Foley or his firm liable, it must appear that he was acting in a capacity different from a hired man, or in giving neighborly assistance. It must appear from the evidence that the shipment was made by reason of some direction or control of one or both of the defendants in pursuance of which said Foley acted.” The defendants' eighth request was to the effect that if the mortgagor, Fales, shipped the cattle of his own volition, and that the Campbell Commission Company took no part in procuring the shipment to be made, except as requested by Fales, and that said company acted in good faith in selling the cattle without any intention to appropriate the cattle, or the proceeds of the cattle, on which plaintiff had a lien, the plaintiff was not entitled to a verdict.

The following propositions are deducible from the authorities: A conversion is any unauthorized act which deprives the owner of his property permanently or for an indefinite time. Stough v. Stefani, 19 Neb. 468, 27 N. W. 445. In an action for conversion, the motive which prompted the defendant to dispose of, or appropriate to his own use, the property of plaintiff, is an immaterial issue. Whether defendant acted in good faith or not is of no consequence. Morrill v. Moulton, 40 Vt. 242;Freeman v. Underwood, 66 Me. 229;Miller v. Wilson,...