Kime v. Bank of Edgemont, S.D.
| Decision Date | 17 February 1909 |
| Citation | 119 N.W. 1003,22 S.D. 630 |
| Parties | KIME v. BANK OF EDGEMONT, S. D. |
| Court | South Dakota Supreme Court |
Appeal from Circuit court, Fall River County.
Action by George W. Kime against the Bank of Edgemont, S.D. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.
Chauncey L. Wood and Andrew J. Kellar, for appellant.
Eastman & Dudley, for respondent.
This is an action in claim and delivery, brought by the respondent against the defendant company to recover the possession of 11 head of steers, which the said respondent, as plaintiff claimed had been taken from his possession and wrongfully detained by the said appellant, defendant in the lower court. Plaintiff sought to recover the value thereof, in case the property could not be delivered, together with $200 for damages for the unlawful detention. Plaintiff's complaint describes the steers as 11 head, three years old, a part of which are branded D/K on the left side, and a part branded /V; both of said brands being vented with the vent of the owner of said brands, "_" below the above brand. All of said steers were also branded with K/ on the left side, which is the brand owned and run by the plaintiff. The plaintiff alleged this wrongful taking as occurring on December 29, 1903, and that before the commencement of action he had demanded the return of the property. Defendant answering, alleges: That November 4, 1902, one McQueen and one Barger were the owners and in the possession of the property described in plaintiff's complaint, together with other cattle and horses; that on said date defendant loaned McQueen & Barger a large sum of money, taking from them their note due November 4, 1903; that to secure said note they took a chattel mortgage on the property described in plaintiff's complaint, together with other property that said mortgage was duly filed on November 10, 1902; that the mortgagors failed to pay the note or interest; that upon said default the defendant took possession of the property described in the complaint herein and duly foreclosed said mortgage as provided by law; that the officer foreclosing made report as provided by law; and that the amount realized from the foreclosure was insufficient to pay the debt. Replying, the plaintiff claimed that he purchased said steers of McQueen & Barger prior to November 4, 1902, and that said McQueen & Barger were not the owners of said steers on November 4, 1902, and alleged that the defendant knew of said purchase before the execution of said mortgage, and denied that the said mortgage was made at the time claimed.
The above are the material allegations of the pleadings. Plaintiff offered testimony, which was received, which, if believed, would tend to show: That on or about October 22, 1902, he entered into a contract for the purchase of 15 head of steers from McQueen & Barger at an agreed price; that on that date 7 head were separated from a large number, branded, and taken in possession by the plaintiff; that he made a partial payment, and a day or two later another small payment; that he was about to ship some stock to market, and agreed that upon his return he would pay McQueen & Barger, and it appears without dispute that on November 6, 1902, he gave a check to McQueen for the amount which he claims was the balance due, and which together with the other payments would amount to the sum which he claims he was to give for said stock. The testimony on behalf of plaintiff would also tend to show that after making this contract for purchase, and before the payment of the check above referred to, which was by far the greater part of said purchase price, the plaintiff had a talk with the president of the bank, defendant, advising him that he had made such purchase, and that said bank, through its president, assured him that he was glad he had made the purchase, that they had a mortgage on some of McQueen & Barger's stock, and that the sum plaintiff was to give was more than the stock would bring if shipped. The testimony on behalf of plaintiff also tends to show that the mortgage of November 4, 1902, was not signed by Barger until about November 9th, and plaintiff claims that that was the date he witnessed same.
The evidence on the part of the defendants would go to show that on November 4, 1901, McQueen & Barger, being indebted to the bank, gave their note therefor in the sum of $2,400, secured by a large number of cattle and horses described in chattel mortgage given on that date, which said chattel mortgage described, among others, 18 head of steers, two years old branded D/K on left side, which description would describe cattle de-described in the complaint for the reason that plaintiff testified that the bar under the K was placed on by himself, but does not agree as to age. Said mortgage of November 4, 1901, did not state that the stock therein described was all of the stock belonging to the mortgagors answering said description. The mortgage described the stock as situated in Custer county, and the mortgage was filed in Fall River county. The defense disputes the plaintiff as to the conversation claimed to be had in the latter part of October, 1902, and the defense claims that they were...
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