Kibble v. Ragland

• Citation: 263 S.W. 507
• Decision Date: 16 June 1924
• Docket Number: No. 15060.,15060.
• Parties: KIBBLE et al. v. RAGLAND.
• Court: Missouri Court of Appeals

263 S.W. 507

KIBBLE et al. v. RAGLAND.

No. 15060.

Kansas City Court of Appeals. Missouri.

June 16, 1924.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

"Not to be officially published."

Suit by Fred Kibble and another, as administrators of the estate of J. Q. Kibble, deceased, against John M. Ragland, doing business as J. M. Ragland & Co. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. "

J. W. Farrar and O. C. Phillips, both of Kansas City, for appellant.

Harding, Murphy AS; Tucker, of Kansas City, for respondents.

BLAND, J.

This is a suit for money had and received. There was a verdict and judgment in favor of plaintiffs in the sum of $2,174.23, and defendant has appealed.

The facts show that plaintiffs) are the owners of the claim sued upon, being the assignees of the First National Bank of Milan, Mo., the original owner of it. The defendant is a live stock commission merchant, located at the Live Stock Exchange in Kansas City, Mo., and lends money upon cattle. On October 10, 1918, defendant sold to one J. A. Dunlap of Sullivan county, Mo., 72 head of cattle, taking a chattel mortgage on the same to secure the purchase price. There seems to be no dispute that on January 9, 1919, 41 head of these cattle were released from the mortgage. Thereafter Dunlap sold to Pierce Thompson 20 of the 41 cattle that had been released from the Ragland mortgage. Thompson on March 26, 1919, sold these 20 head of cattle and 1 other to one P. O. Kibble of Sullivan county, thus making 21 head of cattle, referred to in the evidence as the Thompson cattle. P. O. Kibble on March 29, 1919, borrowed $1,900 from the First National Bank of Milan, Mo and gave the bank a mortgage upon the 21 head of Thompson cattle, being the only cattle owned by said Nibble at the time. The money thus borrowed was procured for the purpose of buying the cattle from Thompson. This mortgage was duly recorded.

About May 28, 1919, J. A. Dunlap and P. O. Kibble entered into a partnership, and on that day bought through the defendant 30 head of steers and gave to defendant a chattel mortgage on them and 20 other steers, which it is claimed by the defendant were the 20 steers that Thompson purchased from Dunlap and sold by Thompson to Nibble. This mortgage to the defendant was given to secure a note in the sum of $7,377.25, which represented the purchase price of the 60 head of steers referred to in the evidence as the Ragland cattle. These 60 head of steers were shipped to Sullivan county, Mo., and the mortgage was filed in that county shortly after it was executed.

On September 11, 1919, P. O. Nibble was indebted to the bank, in addition to the $1,900 secured by the chattel mortgage referred to, in the sum of $3,600 which he borrowed of the bank on March 29, 1919, with his brother and one Parkey as security, and in the further sum of $1,600, which he borrowed on May 31, 1919, and an additional sum of $1,500 which he borrowed from the bank, together with same interest that he owed the bank, making his total, indebtedness to the bank approximately $9,000. Part of this indebtedness, in addition to the $1,900 borrowed on March 29, 1919, was secured by a chattel mortgage. Nibble admitted that when he gave the chattel mortgage to defendant on May 28, 1919, on the 20 head of steers that he had already mortgaged to the bank, he failed to tell defendant that they had been previously mortgaged.

On September 11, 1919, Kibble individually gave the bank a chattel mortgage on "sixty (60) head of two year old steers, all blacks," securing a note in the sum of $9,000 signed by himself, his brother, and one Parkey. This note represented the various items of indebtedness of P. O. Nibble to the bank that we have detailed. In the chattel mortgage it is recited that Nibble lived in Sullivan county, Mo., that the property conveyed should remain in his possession until default, and that should the mortgagor attempt to sell or dispose of the property or to remove or attempt to remove it cut of Sullivan county, Mo., the mortgagee would have the right to take possession of it. This mortgage is referred to in the evidence as a "consolidated" mortgage, and plaintiffs claim it was a renewal of the mortgage of March 29, 1919. This mortgage was likewise recorded in Sullivan county, and shortly thereafter the mortgage of March 29th was released. Thereafter the sum of $1,400 was paid upon the mortgage to the bank, reducng the indebtedness to $7,200. On December 20, 1019, the bank took another mortgage from Kibble, which plaintiffs claim to be a renewal of the mortgage of September 11, 1919. This secured the sum of $7,200 and described "forty-one (41) head of black two year old steers all owned by me and now on my farm in Sullivan county, Lot" This mortgage was recorded prior to the releasing of the $9,000 mortgage.

The 60 head of cattle purchased from the defendant by Dunlap and Nibble on May 28, 1919, after they arrived in Sullivan county, were placed upon a farm belonging to one Morehead and referred to as the May Larkin pasture. There they remained until the first week in October, 1919, when, according to plaintiffs' evidence, they were driven to a nearby town and 40 of the heaviest were taken away to be fattened for the market. These 40 were later shipped to the St. Louis market, where they were sold, and $13000 of the proceeds were remitted to defendant and applied upon the indebtedness to him of the partnership of Dunlap & Kibble. After the 60 head of Ragland cattle were separated by the removal of 40 of them, the remaining 20 referred to in the evidence as "tail ends" were taken back to the Larkin pasture, and the 21 Thompson cattle were put in with them. The Ragland and Thompson cattle were of the same general description. There remained then in one herd 41 head of Ragland and Thompson cattle. These 41 head of cattle stayed on the Larkin pasture until November, when they were taken to the farm of P. O. Nibble. Plaintiffs' evidence further tends to show that the 21 head of Thompson cattle remained on Nibble's farm, separated from the 60 head of Ragland cattle, until they were mingled in the month of October, 1919, with the 20 remaining Ragland cattle in the Larkin pasture.

In January or February, 1920, Nibble moved from Sullivan county to Chariton county, and these remaining 41 head of cattle, including the 21 Thompson cattle, were taken with him. In December, 1920, these 41 head of cattle were shipped to defendant at Kansas City and sold by him for $4,040.53. While the petition alleges that defendant was indebted to the bank in the latter sum, plaintiffs made no effort at the trial to recover that amount, but only the amount that the 21 head of Thompson cattle brought. The 41 head were sold at an average price of $100.73 per head, so plaintiffs sought in the trial to recover only the sum of $2,115.35, and did recover that sum; the jury returning a verdict for that amount and, in addition, interest upon it.

P. O. Nibble, testifying for defendant, stated that instead of driving the 60 head of Ragland cattle to the nearby town and removing the 40 head of the heaviest cattle for preparation for market, 81 head of cattle were driven to that place for separation that the 81 cattle consisted not only of the 60 Ragland cattle but the 21 Thompson cattle; that 41 of tie 81 were brought back to the Larkin pasture. Ile testified further that while he and Dunlap were returning from Kansas City after buying the 60 Ragland cattle, he sold a one-half interest in the Thompson cattle to Dunlap; that on September 11, 1919, the day the mortgage to the bank was executed, the 60 head of Ragland cattle were in the Larkin pasture and the 21 head of Thompson cattle were in his own possession on his form. He further testified that the 40 head of cattle that were shipped to St. Louis were selected from both the Ragland andz Thompson cattle; that he did not know whether all of the Thompson cattle finally came to Kansas City. He claimed that the cattle which ie mortgaged to the bank on September 11th were the Ragland cattle and not the Thompson cattle; that he told Mr. Baldridge, cashier of the bank, who was looking after the matter of the loan for the bank, that the cattle that he was mortgaging were in the Larkin pasture; that he gave the mortgage on the 60 head of cattle because Baldridge requested it. He admitted that he did not tell defendant, when he gave him a mortgage on 20 head of the Thompson cattle in May, that he had already mortgaged them to the bank; that he did not tell Baldridge, when he gave the bank the mortgage on September 11th, that the 60 head of Ragland cattle had been mortgaged to Ragland.

The mortgage of September 11th also covered 26 head of other steers which, together with the Thompson steers, where the only cattle that P. O. Kibble individually owned at that time. He admitted that at the time he executed this mortgage there was very likely a mortgage in existence on these 26 steers in favor of the man from whom he had purchased them, which he had given for the purchasing price; but he said nothing to Baldridge about this. He claimed that he sold a one-half interest in some land that Dunlap owned, and that the one-half interest in the land was valued at $1,000. He admitted that he gave $1,890 for the cattle and borrowed of the bank $1,900 on them. Nothing is suggested in the record as to why the Thompson cattle should have become so valuable between the time they were purchased in March and the latter part of May of that year. There was no showing of any conveyance of a half interest in any land from Dunlap to Kibble, nor was there shown any bill of sale to or written transfer of a onehallf interest in the Thompson cattle from Kibble to Dunlap. It is admitted that the Thompson cattle remained in the possession of Kibble for several months after the time that he claimed he had sold a one-half interest therein to...