McKee Live Stock Co. v. Menzel

• Decision Date: 05 July 1921
• Docket Number: 10049.
• Citation: 70 Colo. 308,201 P. 52
• Court: Colorado Supreme Court
• Parties: McKEE LIVE STOCK CO. v. MENZEL et al.

201 P. 52

70 Colo. 308

McKEE LIVE STOCK CO. v. MENZEL et al.

No. 10049.

Supreme Court of Colorado

July 5, 1921

Rehearing Denied Oct. 3, 1921.

Department 3.

Error to District Court, Custer County; James L. Cooper, Judge.

Action by the McKee Live Stock Company against Charles A. Menzel and others. There was judgment giving certain defendants a lien superior to that of plaintiff, and plaintiff brings error and applies for supersedeas.

Reversed and remanded, with directions.

John A Rush and Foster Cline, both of Denver, for plaintiff in error.

Blunt &amp Hessick, of Florence, and James T. Locke, of Canon City, for defendants in error.

BURKE J.

This cause was tried to the court without a jury, and judgment entered below, giving defendants in error an agister's lien to the amount of $6,079.08 upon 304 head of cattle, and establishing the priority of that lien as against two recorded chattel mortgages on said property held by plaintiff in error. From that judgment the latter prosecutes this writ, and asks the issuance of a supersedeas. The parties occupy the same relative position here as in the court below.

The clerk of the trial court was appointed as receiver, the cattle were sold, and the sum in controversy is now in the hands of the clerk. The cause is fully briefed, and both plaintiff and defendants request that it be finally disposed of on this application. The cattle in question belonged to the copartnership of B. Pepper & Co., of which Sam Pepper was the managing partner. Having apparently gone beyond his financial depth he disappeared, leaving his creditors to satisfy their claims as best they could out of the tangible property of his firm. The copartnership was made a defendant herein, and defaulted. Plaintiff was given a judgment against B. Pepper & Co. for the total unpaid amount of its claim, i. e., $18,170.49, and defendants a judgment against B. Pepper & Co. for $6,079.08. The receiver had in his hands $3,497.89 over and above the costs and expenses of the receivership and the claim of defendants, and that sum was ordered paid to plaintiff. To such portion of the judgment no objection is urged which requires our consideration. The sole question to be determined here is the priority of the claims of the respective parties to said $6,079.08 remaining in the hands of the receiver.

B. Pepper & Co. were engaged in buying, feeding, and selling cattle. A portion of those in dispute herein were bought in November, 1919, with money advanced by plaintiff and secured by a chattel mortgage recorded November 19, 1919. The remainder were purchased in December, 1919, with money advanced by plaintiff and secured by a chattel mortgage recorded December 26, 1919. Both mortgages describe these cattle as located on 'the Kennicott place.'

Defendants contend that they were so located in pursuance of an oral contract made by Charles A. Menzel (representing all the lien claimants) with Sam Pepper (representing B. Pepper & Co.) in the latter part of October, 1919; that the Kennicott place was in the possession of Charles A. Menzel; and that, while there kept and fed, these cattle were in the possession of defendant Dorsey Garnier, as the agent of all the lien claimants.

Plaintiff contends that there is no evidence of such a contract; that the Kennicott place, during the time in question, was in the possession of B. Pepper & Co.; and that Garnier was merely the hired servant of B. Pepper & Co., and that his possession was theirs.

There is much evidence and argument concerning the transfer of these cattle to other places at later dates, their care and feed by other persons, their return to the Kennicott place, their removal by plaintiff, the shipment of a portion of them, the seizure and return of the remainder by defendants. All this, in view of what is hereinafter said, becomes immaterial. Our statute (section 4568, M. A. S. Rev. Ed.) provides:

'Any ranchman, farmer, agister, herder of cattle * * * or any other person to whom any * * * cattle * * * shall be intrusted for the purpose of feeding, herding, pasturing, keeping or ranching, shall have a lien upon such * * * cattle * * * for the amount that shall be due for such feeding, herding, pasturing, keeping, or ranching, and for all costs incurred in enforcing such lien.'

This statute is in derogation of the common law, and must be strictly construed. Bailey v. O'Fallon, 30 Colo. 419, 420, 70 P. 755; Auld v. Travis, 5 Colo.App. 535, 539, 39 P. 357; Ellison, Adm'r, v. Tuckerman, Rec., 24 Colo.App. 322, 326, 134 P. 163. Possession is essential to support the lien, and that possession must be exclusive. Auld v. Travis, supra. No such lien exists in favor of one who is a mere hired servant of the owner. Sorrells v. Sigel-Campion Co., 27 Colo.App. 154, 171, 148 P. 279.

Where the testimony is conflicting, the judgment will not be reversed for insufficient evidence. Hallack et al. v. Stockdale et al., 14 Colo. 198, 23 P. 340; Lanham v Copeland, 66 Colo. 27, 178 P. 562. There is no evidence as to the alleged contract between Menzel and Pepper, under which the lien is claimed, save that of Charles A. Menzel. This consists solely of the statements by the witness as to what 'the agreement was,' what cattle were 'referred to,' whom Menzel 'represented,' what 'the understanding' was, and what 'the purpose was.' These were mere conclusions, repeatedly given over repeated objections, and repeated demands for 'what was said.' The witness detailed no fact and recited the substance of no conversation from which either the trial court or this court could...