Ladd v. Williams

• Decision Date: 16 February 1904
• Citation: 104 Mo. App. 390,79 S.W. 511
• Court: Missouri Court of Appeals
• Parties: LADD et al. v. WILLIAMS.<SMALL><SUP>*</SUP></SMALL>

79 S.W. 511

104 Mo. App. 390

LADD et al. v. WILLIAMS.^*

St. Louis Court of Appeals. Missouri.

February 16, 1904.

CHATTEL MORTGAGES — PROPERTY MORTGAGED —CONVERSION — IDENTITY — QUESTION FOR JURY — WITNESSES — INCOMPETENCY — WAIVER—REMOVAL.

1. In an action for conversion of mortgaged cattle, evidence tending to identify the cattle converted as those described in the mortgage held to present a question for the jury.

2. Where a party fails to object to an incompetent witness until after prejudicial evidence has been brought out on his cross-examination, the incompetency is waived.

3. Under Rev. St. 1899, § 4652, providing that in actions where one of the original parties to the contract in issue and on trial is dead, the other party to such contract shall not be admitted to testify in his own favor, mortgagees in a chattel mortgage of cattle were incompetent to testify to any fact concerning the mortgage or its contents, in an action for conversion of the mortgaged cattle, after the mortgagor's death.

4. Where a chattel mortgagee was disqualified from testifying in an action for conversion of the mortgaged property by reason of the death of the mortgagor, such disqualification was not removed by the fact that such mortgagee had been appointed in the mortgage as one of the persons to identify the property.

Error to Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by F. M. Ladd and others against E. J. Williams. From a judgment in favor of defendant, plaintiffs bring error. Reversed.

See 72 S. W. 475.

Mozley & Wammack, for plaintiffs in error. C. L. Keaton, for defendant in error.

BLAND, P. J.

In substance, the petition alleges that on the ____ day of March, 1899, plaintiffs were the owners of 6 head of cattle, with their increase, and 75 head of hogs, with their increase, of the value of $1,250; that afterwards, on the ____ day of March, 1899, the defendant wrongfully took possession of all said property, and unlawfully converted it to her own use, to plaintiffs' damage in the sum of $1,250, for which they ask judgment. The answer was a general denial. At the close of all the evidence, the court instructed the jury that plaintiffs had entirely failed to identify the property claimed, and directed the jury to return a verdict for defendant. Plaintiffs preserved the evidence and their exceptions by bill of exceptions duly signed and filed, and brought the case to this court by writ of error.

The evidence shows that the plaintiffs on August 6, 1896, became sureties on a note of D. K. Williams, payable to C. D. Matthews, for $700. To secure plaintiffs as such sureties, D. K. Williams executed, acknowledged, and delivered to plaintiffs a chattel mortgage on a lot of personal property, including all his cattle (six head), and all his hogs (about 75 head), situated on his farm adjoining the town of Dexter, in Stoddard county, Mo., and named Lee Williams, one of the plaintiffs, and Anderson Williams, his son, as persons who could identify the property. The mortgage was duly recorded on August 10, 1896. Williams failed to pay the note at maturity, and it was paid by the plaintiffs, his sureties, before the commencement of the suit. D. K. Williams died in November, 1900. The defendant is his widow. On March 6, 1899, defendant shipped a car load of hogs and a mixed car of hogs and cattle (about 15 or 16 cattle) from the Williams farm to the Blakely-Sanders-Mann Company, National Stockyards, Ill. The shipment was received by the Blakely-Sanders-Mann Company and sold on the market as the property of defendant, and a draft for the proceeds of the sale ($982.10) was drawn by the Blakely-Sanders-Mann Company, payable to the defendant, and remitted to her. She received and cashed the draft, and used the proceeds in the purchase of a grocery store in Dexter in her own name, after the death of her husband. Plaintiffs claim that the hogs and cattle shipped on March 6, 1899, were the hogs and cattle, and their increase, embraced and described in the mortgage. To prove this contention, Lee Williams, the brother of D. K. Williams, and one of the parties named in the mortgage as a person who could identify the mortgaged property, testified that he knew the property, and saw it every few days on his brother's farm, up to, and within, one or two days before the shipment of March 6th; that about March 6th it suddenly disappeared; that shortly thereafter the defendant told him she had shipped all the stock from the farm; that the cattle consisted of cows; and that there were a number of brood sows among the hogs, and there was the usual increase from each from year to year after the mortgage was given. R. S. Ladd testified that he knew the stock, and saw it all along on D. K. Williams' farm after the mortgage was given; that it suddenly disappeared about the 1st of March, 1899; that he looked the matter up, and, after finding that defendant had made the shipment of March 6th, he had a conversation with her about the stock included in the mortgage, and she told him she had shipped the stock, and used the money in paying a debt she owed her mother. On his cross-examination the following occurred: "Q. Then you don't know, and are not swearing, that these hogs shipped on the 5th, 6th, 7th, or 8th of March were the same hogs you saw on the farm? Do you know? A. Mr. D. K. Williams told me they was. Q. Who? A. D. K. Williams. Q. But you don't know from your knowledge or observation? A. The best of my knowledge, they were, because I saw the hogs on the farm, and when I came home they told me the hogs were shipped— Q. I don't care about that. Do you know? A. I went to the records, and found the hogs were shipped in Mrs. Williams' name. I first went to the farm, and Mr. Williams told me himself that she shipped them in her name. Q. What hogs—the hogs mortgaged? A. Yes, sir. Q. In whose presence? A. Me and D. K. Williams. Q. No one else? A. No, sir. Q. And Mr. Williams is dead? A. Yes, sir. Q. I was asking you, Mr. Ladd, if you know of your own knowledge that those hogs were the same hogs? A. That is all the knowledge I have of it. Q. That is all the knowledge you have of it? A. Yes, sir. Q. That is all. One further question: Did he also tell you they were the same cattle he had in his mortgage? A. Yes, sir. Q. You are sure of that, are you? A. Yes, sir. Q. Did he tell you in what mortgage they were described? A. Yes, sir; we talked over the matter a number of times. Q. Did he tell you in what mortgage? A. Yes, sir. Q. Which one? A. The one made in 1896. They were only described in one mortgage. Q. That is all." Redirect examination: Q. by Mr. Mozley. One other question now: When you went to the farm the second time, after learning of the shipment, tell the jury if you found any of the stock covered by your mortgage on the farm? A. No, sir; none at all. Q. Never seen them since? A. No, sir; he told me— Mr. Cramer: We object to what he told you. Q. I never asked him that. That is all. Mr. Cramer: If the court please, we move to exclude the statement made by D. K. Williams, as being incompetent testimony. The Court: Very well. The motion...