Lonabaugh v. Morrow

• Decision Date: 24 November 1902
• Citation: 70 P. 724,11 Wyo. 17
• Parties: LONABAUGH v. MORROW
• Court: Wyoming Supreme Court

70 P. 724

11 Wyo. 17

LONABAUGH v. MORROW

Supreme Court of Wyoming

November 24, 1902

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

Action brought by Frank Morrow against the Bank of Commerce, a corporation, and E. E. Lonabaugh to recover a sum claimed to be due for services in gathering certain cattle belonging to the mortgagors in a certain chattel mortgage held by the bank. The District Court found that the bank employed the plaintiff to gather the cattle described in the chattel mortgage under written authority and directions, and that said Lonabaugh acted as attorney and agent for the bank; that the defendant Lonabaugh also delivered to plaintiff (who was sheriff of the county) two executions against the mortgagors aforesaid, and directed him to gather the cattle mentioned in the mortgage and also other cattle not included therein under the executions; and that said Lonabaugh orally directed the gathering of all cattle that were gathered by plaintiff as well those not described in the mortgage, as those which were therein described. Judgment was rendered against the defendant Lonabaugh for the unpaid balance due for the services of the plaintiff. The other facts are stated in the opinion.

Affirmed.

E. E Lonabaugh, for plaintiff in error.

In making the round-up Morrow did not act in his official capacity as sheriff. He says, among other things: "After he gave me the execution I consented to go as agent, less risk as agent than under the execution." His instructions were certainly fresh in his mind at that time, and yet he says nothing about gathering any cattle for Lonabaugh, or of having been employed by Lonabaugh. The testimony of the president of the bank is that he employed Lonabaugh to attend to the foreclosure of the mortgage, and the testimony of the latter is that he never employed Morrow to gather any cattle except those described in the chattel mortgage. All parties, therefore, agree that Morrow acted simply as an agent of the Bank of Commerce, and not in his official capacity. It is quite clear that he preferred to act in his private capacity, rather than as an officer, and that he intended to avoid any liability officially. In other words, he desired to protect his official bondsmen, in the event of there being any difficulty over his actions. In order that it may clearly appear that there is no ground for questioning the statement that Morrow acted in his private capacity as agent only, I quote from the testimony of the plaintiff in error: "I did not give Mr. Morrow any instructions to gather any cattle only those described in the chattel mortgage." And, again, in answer to question by the court: "I had Mr. Perkins' written authority, so he could make no mistake. I considered that my duty, and had no desire to extend the terms of the chattel mortgage. I never gave Mr. Morrow any instructions to gather anything under the executions. The cattle in the mortgage I considered worth from $ 4,000 to $ 6,000. The mortgage was a first lien to the amount of the debt secured thereby, about $ 2,000. I sent the executions along for the purpose of levying on the equity in these cattle, over and above the amount due to the bank. I never instructed Mr. Morrow to gather any cattle or make any levy under the executions, and he never claimed to me that he did so." Under these circumstances, where is there any evidence whatever to sustain finding two of the court, that "Lonabaugh delivered to Morrow two executions and directed him to gather the cattle mentioned in the mortgage and also other cattle not included therein, under said executions?" If this finding be true, then Morrow went in his official capacity, acted as sheriff and made an official levy. This finding is without any evidence whatever to sustain it.

In finding No. 3 the court finds that defendant Lonabaugh orally directed Morrow to gather all of the cattle gathered by plaintiff (Morrow), under the chattel mortgage to the bank, both the cattle described in the mortgage and the other cattle not described therein, but gathered by Morrow. The effect of this finding, or another method of stating it would be, that Lonabaugh obtained from the Bank of Commerce written authority employing Morrow as its agent to gather the cattle described in the instrument, and also obtained for Morrow's guidance a duly certified copy of the chattel mortgage from the Wallaces to the bank, accurately describing the cattle covered thereby and claimed by the bank.

It is true that Morrow testifies that he had instructions to gather the seven-cross cattle; that Lonabaugh directed him to gather the seven cross cattle, and he now says that he does not know when these instructions were given, whether before or after the written authority was delivered to him; but on a former occasion when his memory was fresh on this subject he testified as follows: "Did you have any order in writing?" Answer: "I had an order in writing to gather certain brands." Question: "You say there were some preliminary orders, then after these preliminary orders was there some writing given you?" Answer: "Yes, sir." This was Morrow's evidence in an action tried shortly after he had gathered these cattle, between the Bank of Commerce and the Wallace brothers. Of course, aside from the evidence, the whole transaction bears an evidence of improbability. It is extremely improbable that any attorney, if given credit for reasonable good sense, would exercise such care to get everything in writing, and then orally direct the party to lay aside the writings, pay no attention to his limited authority therein given, and act in excess of it. Why was a certified copy of the mortgage obtained? Why was written authority given? Why were the brands all marked both on the mortgage and written instructions? All these were mere folly, if they are to be succeeded by oral directions. It is so improbable as to raise a strong presumption that it cannot be true. And, even if Morrow did so testify, he is directly contradicted by defendant.

Again, under what rule of law is such evidence admissible, or such a finding proper? Admitting, for the purpose of the argument, that Lonabaugh handed the chattel mortgage and appointment as agent to Morrow and at the same time told Morrow to gather under these instruments the seven cross cattle, is Morrow entitled to testify to it? Can he accept his appointment as agent, as shown by the written instructions and mortgage, and then come into court and say: "Yes, I received these written directions, but at the same time I was orally directed by these same parties to gather other cattle"? We respectfully submit that if allowed to so testify, the plaintiff below (Morrow) violates one of the fundamental rules governing the introduction of evidence, that oral evidence cannot be received to vary, enlarge or explain a contemporaneous written instrument, not ambiguous in its terms. Having received written directions what cattle to gather, and having in his possession a certified copy of the chattel mortgage, can plaintiff Morrow say that these instructions were orally enlarged? We think not.

It would seem to be useless to cite authority in support of the foregoing rule. It is considered and a number of authorities cited in the case of Ivinson v. Hutton, 3 Wyo., 61. (See Haskins v. Dern, 56 P. 953; Moyle v. Cong. Ch. Soc., 50 P. 806; Bank v. Foote, 42 P. 205; Cohen v. Jackoboise, 59 N. W., 665; Atkinson v. Blair, 38 Ia. 156; Sylvester v. Paper Co., 75 N. W., 1092; Sanborn v. Plowman, 35 S. W., 193; Lumber Co. v. Dickey, 27 S. W., 955; Wakefield v. Steadman, 12 Pick., 562; Adams v. Wilson, 12 Metc. (Mass.), 138; Skabis v. Ferge, 78 N. W., 426.)

Finding 4 only corroborates what has been said as to finding 3. Finding 4 is to the effect that in directing said plaintiff (Morrow) to gather all of the cattle gathered by plaintiff under the chattel mortgage to the bank, the defendant, E. E. Lonabaugh, acted as attorney and agent of the bank. This finding is certainly erroneous. The bank has been released by the judgment of the court from any liability to Morrow. The agent of the bank is held. Under some circumstances, where an agent does not disclose his principal, he makes himself personally liable; but when the principal is known, as in this case, it is a strange condition that the principal is released and the attorney for the principal held.

Finding 6, that plaintiff's services were reasonably worth the sum of $ 112.20, is also erroneous. An examination of the amended petition shows that plaintiff Morrow brought his action for the reasonable value of his services rendered, alleging the value to be $ 15, and for the further sum of $ 97.20 expenses paid by him. We submit that there is no proof of the items of expense incurred by him, if any, nor of the reasonableness of the same, or the reasonable value of his services performed, if any. Nowhere is there any evidence whatever that the value of Morrow's services and expenses incurred amount to $ 112.20. The only place that this appears is in the judgment.

In finding 7 the court exonerates the Bank of Commerce from any liability to Morrow for any portion of the sum remaining unpaid; and we submit that if the bank is not liable its attorney is not.

In finding 8 the court declares that defendant Lonabaugh is liable for the whole amount of $ 112.20, and he is credited on this with $ 20 advanced by him and with $ 28 advanced by the Bank of Commerce. This, too, is error. As the defendants were not jointly liable, certainly Lonabaugh is not entitled to credit for the $ 28 paid by the bank, nor is he liable for the whole amount, in as much as the bank got six head of cattle and Lonabaugh none. Morrow testifies that it was just as much trouble...