Maxwell v. Durham
| Decision Date | 27 June 1927 |
| Citation | 297 S.W. 94,222 Mo.App. 193 |
| Parties | JAMES E. MAXWELL ET AL., RESPONDENTS, v. HARRY A. DURHAM, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Nelson E Johnson, Judge.
AFFIRMED.
Judgment affirmed.
J Walter Farrar, William B. Bostian and R. R. Brewster for respondent.
C. O French and Milton Schwind for appellant.
Trimble, P. J., absent.
This is an action to recover for the purchase price of seventy head of cattle. The facts of record are that plaintiffs were partners and dealt in livestock 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 livestock 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 feeder, living near Wapello, Iowa. On March 4, 1919, as shown by plaintiff's testimony, defendant with a friend, one Loeb, appeared late in the afternoon at the pens at the Stock Yards in Kansas City, Mo., where the plaintiffs had some ninety to ninety-five 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 seventy steers were sold to the defendant at $ 11.10 per hundredweight; that between eighty-five and ninety-five steers were in the pens, out of which the seventy 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, and 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 Comm. Co., that the cattle were weighed by plaintiffs and then turned over to the Stock Yards 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 had any business transaction with them, though the firm had bought cattle for his neighbors for a long time; that Palmer bought the seventy 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 awhile, 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, $ 5167.05, drawn on the Drovers National Bank of Kansas City, Missouri. This check was deposited by plaintiffs about four 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 ten A. M. are deposited at that hour, and all such received after ten A. M. and up to four 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 ten A. M. on March 6th, and was therefore included in the four 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 stock yards in Kansas City, Mo., charges that on March 5, 1919, plaintiffs sold to defendant seventy head of cattle, the same being purchased by defendant personally, and also by and through defendant's agent, Zook & Zook Live Stock Commission Co., that at the time said cattle were purchased from plaintiffs by defendant, defendant's agent, Zook & Zook Live Stock Commission Co., gave and delivered to plaintiffs their check for $ 5167.05, 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 $ 5167.05 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 Stock Yards seventy head of cattle belonging to plaintiffs; that he purchased same from Zook & Zook Live Stock Commission Co., or that said Zook & Zook purchased same for defendant; that defendant was present when the sale was agreed upon between plaintiffs and said Commission Co., 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 Co., that said cattle were shipped to defendant by said Zook & Zook Commission Co., 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 Co. 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 Co., 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 Co. in full for the said purchase price, with full knowledge that defendant was paying said Zook & Zook Live Stock Commission Co. for said cattle; that plaintiffs elected to look to Zook & Zook Live Stock Commission Co. for payment for said cattle and not to defendant, and plaintiffs are by said conduct estopped to claim defendant as their debtor, and to demand payment from defendant.
The answer further alleges that on said March 5, 1919, plaintiffs dealt with said Zook & Zook Live Stock Commission...
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