Maxwell v. Dunham

• Decision Date: 27 June 1927
• Docket Number: No. 16006.,16006.
• Citation: 297 S.W. 94
• Parties: MAXWELL et al. v. DUNHAM.
• Court: Missouri Court of Appeals

297 S.W. 94

MAXWELL et al. v. DUNHAM.

No. 16006.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Rehearing Denied July 11, 1927.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Action by James E. Maxwell, Jr., and others against Harry A. Dunham. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. O. French and Milton Schwind, both of Kansas City, for appellant.

J. Walter Farrar, William B. Bostian, and R. R. Brewster, all of Kansas City, for respondents.

ARNOLD, J.

This is an action to recover for the purchase price of 70 head of cattle. The facts of record are that plaintiffs were partners and dealers in live stock at the Live Stock Exchange, in Kansas City, Mo., and were members of the Traders' Exchange, an association of traders and dealers, a separate organization from the Live Stock Exchange, composed of men engaged in buying and selling live stock on commission, the chief difference between the Traders' Exchange and the Live Stock Exchange being that the members of the former buy and sell cattle to farmers, feeders, and others on their own account, while the latter operate as agents for either the buyer or seller, charging a commission therefor.

Defendant was a farmer, stockman, and yards, in Kansas City, Mo., where the plaintiffs had some 90 to 95 head of cattle, and there examined the same and entered into conversation with one Ed Mahoney, a salesman for plaintiffs. After examining the said cattle, defendant left the pens, saying he would be back the next morning; that defendant did appear the following morning, at which time there was some bickering and bidding on the price of the cattle.

Mahoney further testified that no one took any part in the conversation but the witness and the defendant; that 70 steers were sold to the defendant at $11.10 per hundred weight; that between 85 and 95 steers were in the pens, out of which the 70 were purchased; that after the price was agreed upon between Mahoney and defendant, the latter said, "I am going to find Mr. Palmer, and have him come down and select them, to get the best out of them;" that it was defendant's right to select the best from the lot in the pens.

It appears that Palmer was an order buyer for Zook & Zook Live Stock Commission Company, find defendant wanted Palmer to come down and cull out the cattle; that after the sale had been made, defendant had the cattle turned over to Zook & Zook Live Stock Commission Company; that the cattle were weighed by plaintiffs and then turned over to the stockyards company.

On cross-examination, this witness testified that on March 4th he had this conversation with defendant, and not until after the cattle were bought, the next day, did defendant say anything about Mr. Palmer. This testimony was contradicted in some material matters by defendant who was a witness in his own behalf, stating that he first met Mahoney on March 4, 1919, at about 4:30 p. m.; that he did not know plaintiffs before that time; that he and his friend, Loeb, were at that time just looking through the pens to pick up a load of cattle; that Mahoney asked him if he wanted to buy some cattle, and he said he was going to buy, but that it was too late that day; that he would come down the next morning with Mr. Palmer; that Zook & Zook arranged to buy the cattle for him; that he had known that firm for six or eight years, but this was the first time he had any business transaction with them, though the firm had bought cattle for his neighbors for a long time; that Palmer bought the 70 head involved in this suit for him; that Mahoney and Palmer did the talking, in his presence; that he and Palmer walked away, and he told Palmer to raise the price "a dime," and the cattle were purchased at $11.10 per hundredweight; that he did not see the cattle again until their delivery to him in Iowa that he gave Zook & Zook a check for them, either on the 7th or 6th of March, 1919, he believed the 6th, payable to Zook & Zook; that the same was deposited by Zook & Zook in the Drovers' National Bank of Kansas City; that he stopped payment on the check, and said bank brought suit against him in the United States District Court in Iowa, and by judgment in said court he was required to pay the check, which he did; that he saw Mahoney in Wapello, Iowa, a day or two after he received the cattle; that plaintiffs herein brought a replevin suit for the cattle in Iowa and that the same remained pending quite a while, and was finally dismissed, after the termination of said suit in the United States District Court; that witness never directly bought any cattle for himself, but always had a commission firm buy them for him.

Aside from the above, there seems to be little, if any, material conflict in the evidence. It appears that after the cattle were weighed by plaintiffs, a scale ticket was sent up, giving the name of the seller and purchaser, the number of head sold, the weight, and price; that the cattle were weighed and billed by Maxwell and Stewart to Zook & Zook, account of Harry A. Dunham; that the scale ticket comes in duplicate; the ticket and clearance of title were attached to the bill for the delivery of the cattle, the original ticket pinned thereto and put in the clearing house or post office maintained by the members of the two exchanges above mentioned, for convenience in expediting business. Through the same source, plaintiffs received a check executed by Zook & Zook for the price of the cattle, $5,167.05, drawn on the Drovers' National Bank of Kansas City, Mo. This check was deposited by plaintiffs about 4 p. m. on the day of its receipt, in the Interstate National Bank, the regular depository of plaintiffs, to their credit. It appears that plaintiffs, if necessary, make two deposits daily. All checks and money received prior to 10 a. m. are deposited at that hour, and all such received after 10 a. m. and up to 4 p. m. are deposited at the last-named hour. It is in evidence that the check in question was received by plaintiffs, in the manner above detailed, after 10 a. m. on March 6th, and was therefore included in the 4 p. m. deposit on that day. The clearing house meets at 11:30 a. m. daily, and the check, which went through the clearing house on March 7th, was presented at about noon on that day. In the meantime Zook & Zook had failed, and the check was not paid for lack of funds. This suit for the price of the cattle followed.

The petition, after alleging the business status of plaintiffs as partners, and that they were engaged in the business of buying and selling cattle at the stockyards in Kansas City, Mo., charges that on March 5, 1919, plaintiffs sold to defendant 70 head of cattle, the same being purchased by defendant personally, and also by and through defendant's agent, Zook & Zook Live Stock Commission Company, that at the time said cattle were purchased from plaintiffs by defendant, defendant's agent, Zook & Zook Live Stock Commission Company, gave and delivered to plaintiffs their check for $5,167.05, representing the price of said cattle; that the same was received by plaintiff, conditioned upon the same being paid when presented, and said cattle were thereupon delivered to defendant; that when said check in the course of business was presented to the bank upon which it was drawn, the same was dishonored and protested; that said check was without value, and defendant has refused and neglected and still neglects and refuses to pay plaintiff the purchase price of said cattle; that demand has been made for the return of said cattle or payment therefor, which said demand has been refused. Judgment for $5,167.05 and interest from March 5, 1919, is demanded.

The answer is, first, a general denial; admits the status of plaintiffs and Zook & Zook, as alleged in the petition; that on March 5, 1919, defendant purchased at the Kansas City stockyards 70 head of cattle belonging to plaintiffs; that he purchased same from Zook & Zook Live Stock Commission Company, or that said Zook & Zook purchased same for defendant; that defendant was present when the sale was agreed upon between plaintiffs and said commission company; and that defendant agreed to take said cattle at the price agreed upon. The answer denies that defendant had any dealings of any kind with plaintiffs with reference to said cattle; and that all his dealings relative thereto were with said Zook & Zook Live Stock Commission Company; that said cattle were shipped to defendant by said Zook & Zook Commission Company, who rendered a bill of sale to defendant, charging him the price therefor, together with their commission; that on March 5, 1919, defendant gave to said Zook & Zook Live Stock Commission Company his check for the price of said cattle, including said commission, which check defendant paid; that plaintiffs delivered said cattle to Zook & Zook Company and charged the same on their books to said Zook & Zook Live Stock Commission Company, and rendered to them their account of sale and bill for the price thereof, and received and accepted the check of Zook & Zook Live Stock Commission Company in full for the said purchase price, with full knowledge that defendant was paying said Zook & Zook Live Stock Commission Company for said cattle; that plaintiffs elected to look to Zook & Zook Live Stock Commission Company for payment for said cattle and not to defendant, and plaintiffs are by said conduct estopped to claim defendant as their debtor,...