Kissick v. Kissick
| Decision Date | 01 February 1926 |
| Docket Number | No. 15264.,15264. |
| Court | Missouri Court of Appeals |
| Parties | KISSICK v. KISSICK et al. |
Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.
Suit by R. L. Kissick against E. E. Kissick and another. From a judgment for plaintiff, the defendant Swift & Henry Live Stock Commission Company appeals. Affirmed.
James M. Johnson and Sherratt M. Johnson, both of Kansas City, for appellant.
McCanles, Kennard & Trusty, of Kansas City, for respondent.
This is a suit for conversion. There was a verdict and judgment in favor of plaintiff in the sum of $4,300.32, and defendant Swift & Henry Live Stock Commission Company has appealed.
The facts show that, in the fall of 1920, E. E. Kissick, plaintiff's brother, purchased from Tom L. Pratt 150 head of steers and in payment of the same gave the said Pratt a note and chattel mortgage for the purchase price; the note being signed by said Kissick and plaintiff. Pratt lived in western Kansas and Kissick near Beverly in central Kansas. After purchasing the cattle, E. E. Kissick shipped them from western Kansas to his farm near Beverly. The mortgage was filed of record in the county in which the mortgagor lived. On or about April 20, 1921, without the consent or knowledge of Pratt, said E. E. Kissick shipped 37 head of the cattle to defendant, a live stock commission company in Kansas City, Mo., who sold the same and applied the proceeds on E. E. Kissick's indebtedness to the Guaranty Cattle Loan Company. Mr. J. C. Swift was president both of the Guaranty Cattle Loan Company and the defendant the live stock commission company. The remaining cattle were shipped during the spring and summer of 1921 to Kansas City and sold by the commission company, but the proceeds of these cattle were turned over to Pratt, who applied the same on his mortgage. Thereafter Pratt brought suit against plaintiff on the note, but before the suit was tried plaintiff paid Pratt the balance due, amounting to some $4,400; $1,000 of said sum being paid in cash, and $3,400 being paid by note secured by second mortgage on real estate of plaintiff and payable one year after date. Either at the time of the payment of the $1,000 or the payment of the $3,400 note, which was met when it fell due, Pratt turned over and indorsed to plaintiff the note and chattel mortgage, and also assigned to him his right to bring suit against the defendant for conversion.
Defendant commission company contends that its demurrer to the evidence should have been sustained, for the reason that the chattel mortgage was not sufficiently definite to constitute constructive notice to strangers and that the 37 head of cattle were sold by the commission company and the proceeds turned over to the Guaranty Cattle Loan Company prior to the time that the former had notice of the mortgage. There is no merit in this contention. Without passing upon the sufficiency of the description of the cattle in the mortgage, there was evidence tending to show that the commission company had actual notice of the mortgage before applying the proceeds of the sale of the 37 head of steers to the indebtedness of the Guaranty Cattle Loan Company.
The facts in this connection show that on April 28, 1921, J. C. Swift, president of the commission company, told plaintiff that E. E. Kissick had shipped to it two carloads of cattle (the 37 head) and that said Kissick did not want him to apply the proceeds on the note that he owed the commission company (it appears that E. E. Kissick owed the commission company a large sum of money, as well as the Guaranty Cattle Loan Company) because "the cattle belong to Pratt"; "because they were Pratt's cattle." Swift thought this was strange because the balance of the cattle was sufficient security for the Pratt mortgage and that Pratt was "perfectly safe." Plaintiff then said to Swift that he (E. E. Kissick) had no business to turn the money over to defendant commission company; Swift replied: "If it is Tom Pratt's money, don't want it."
The evidence shows that one Ryan, a commission merchant of Kansas City, Mo., either on the day the 37 head were sold or the day after, told J. C. Swift that Pratt had a mortgage on them; that he obtained this information from Pratt, and that Swift said, "He didn't want any money for any cattle that didn't belong to him, but he said that he ought to have some cattle out there with Mr. Kissick (E. E. Kissick);" that, "if those cattle belonged to Pratt—if Pratt had a mortgage on them, Pratt would get the money." Ryan testified that he had previously seen these cattle at E. E. Kissick's farm and that he gave Swift this information from a friendly motive so that he might protect himself; that commission men are supposed to protect each other. Swift testified that the money was turned over to the Guaranty Cattle Loan Company on the day the cattle were sold and claimed that the conversation he had with Ryan was several days thereafter. He assumed that Ryan was trying to protect Pratt in giving him (Swift) the information; that Ryan was Pratt's commission man, and they were good friends.
From Ryan's testimony the inference is that he told Swift about the mortgage prior to the time the money was turned over to the loan company. But defendant commission company insists that Ryan was a stranger to the transaction and Swift was justified in believing that Ryan had no actual knowledge in respect to the facts. This conversation between Ryan and Swift was not merely idle talk and about a matter that did not concern Ryan, but, according to defendant commission company's testimony, it was told for the protection of Pratt by Pratt's commission man and friend. Ryan testified that he told Swift that he got the information from Pratt. He further testified that he saw the cattle on which Pratt had the mortgage in the possession of E. E. Kissick on the latter's farm and that these were all the cattle that said Kissick had there. Of course, there is no question but that the information given Swift by Ryan constituted notice of the mortgage and that the commission company was liable to Pratt. 25 C. J. 412. Swift testified that E. E. Kissick, in shipping the 37 head of cattle, told him to apply the proceeds to the latter's indebtedness to the Guaranty Cattle Loan Company; that this was all the information he had that the cattle were Kissick's free from any lien. Swift admitted that he knew when he sold the cattle that mast of the cattle coming from Kansas were mortgaged and that he knew that Pratt had a mortgage on some of E. E. Kissick's cattle. The testimony shows that Swift knew that E. E. Kissick was heavily in debt and was financially irresponsible. When Pratt wanted the commission company to settle with him for the cattle, Swift did not say that he had applied the money to the indebtedness of the Guaranty Cattle Loan Company, but wanted Pratt to sue plaintiff. Swift wanted to make E. E. Kissick arrange his affairs so that he could settle the indebtedness. There are letters in the record written by Swift which are along these lines and which do not suggest any lack of liability on the part of the commission company, but evince a great interest in seeing that Pratt was paid without loss to itself if possible. There is ample evidence that the commission company knew of Pratt's mortgage before the turning over of the money, if any, to the Guaranty Cattle Loan Company.
The petition as it read when the parties went to trial alleges that plaintiff was an accommodation indorser of E. E. Kissick's note; that Pratt sued plaintiff as such accommodation indorser, and that plaintiff was required to pay Pratt the sum of $4,000 on account of his indorsement of the note; that, when plaintiff had satisfied said note to Pratt, the latter assigned to said plaintiff "all of his right, title, and interest in and to the aforesaid described mortgage; that plaintiff was and should be subrogated to the rights of Tom L. Pratt in and to said note;" that * * * "said plaintiff is now the owner of said note and chattel mortgage and as such has all of the rights, title, and interest in and to said note and chattel mortgage that the said Tom L. Pratt had at the time said cattle were sold and the proceeds turned over in payment of said old indebtedness of the said E. E. Kissick, as aforesaid."
At the close of the testimony the court, over the objection of defendant commission company, permitted plaintiff to amend his petition as follows:
"`And all his rights against said defendant, and to sue and recover from defendant Swift & Henry Live Stock Commission Company the sum received by said defendant from the sale of said cattle,' and to further amend by striking out in the sixteenth line the last four words, being, `and to said note,' and to insert therein `said claim.'" (The abstract of the record is poorly prepared, but we assume that this new allegation is to be inserted after the word "mortgage" as it appears in the first quotation supra from the petition.)
It is insisted that the court erred in permitting the amendment of the petition; that the petition upon which plaintiff went to trial merely pleaded the assignment of the note and mortgage by Pratt to plaintiff; that this allegation was not sufficient, for the reason that the assignment of the note and mortgage did not assign the right to bring suit against defendant commission company which had theretofore accrued; and that the petition was fatally defective, in that it did not allege that plaintiff was the owner of or in the possession of the property on the date of the alleged conversion, and did not state that plaintiff was entitled to the immediate possession of the property at the time of the conversion, and fails to state any special ownership or interest in the property in plaintiff, and that there was no breach of duty as to plaintiff.
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