Moderie v. Schmidt
| Citation | 6 Wn.2d 592,108 P.2d 331 |
| Decision Date | 13 December 1940 |
| Docket Number | 27493. |
| Parties | MODERIE v. SCHMIDT et al. |
| Court | United States State Supreme Court of Washington |
Department 1.
Action by Joseph Moderie against Arthur Schmidt and others copartners doing business as the Spokane Livestock Commission Company, to recover portion of selling price of plaintiff's cattle, sold through defendants. From judgment for defendants, plaintiff appeals.
Judgment reversed with directions to enter judgment for plaintiff.
Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.
Graves, Kizer & Graves and J. W. Greenough, all of Spokane, for appellant.
Randall & Danskin, of Spokane, for respondents.
Joe Moderie, a Montana rancher, delivered eighteen head of cattle to R. C. Byers. At the time of the delivery, Moderie and Byers executed the following instrument in triplicate:
'State of Montana
'County of Lake}ss.
Moderie retained one copy, Byers, another, and the third was forwarded to Clark and Snow, at Portland. Byers paid Moderie $150 at the time. Byers trucked the cattle to Paradise Montana, where they were delivered to a railroad company with other cattle, all consigned to Clark and Snow, Portland, by Byers as consignee.
The defendants were doing business at Spokane as livestock commission merchants. Learning of the shipment, they persuaded Byers to divert it to the Spokane stockyards. The cattle were delivered to the defendants at the Old Union Stockyards at Spokane, and by them sold to the Carstens Packing Company. The defendants received the purchase price and paid it over to Byers, less their commissions and charges, and he absconded.
It is not contended that there was anything irregular or wrongful in the diversion to Spokane. Such diversions were customary in order to take advantage of favorable market conditions; nor is there any contention that the cattle were wilfully converted. The state of Montana maintained at the stockyards a brand inspector, named Bruns, who was familiar with the Montana brands and to whom the commission merchants operating at the stockyards looked for information regarding ownership. It appears that he construed the instrument quoted at the beginning of this opinion as a bill of sale from Moderie to Byers.
Moderie, receiving no money from Clark and Snow, traced the cattle through the railroad company and learned that they had been unloaded at Spokane. Being somewhat hard of hearing, he had a friend telephone the defendants to inquire what had occurred. Shortly after the telephone conversation, the Spokane Livestock Commission, that is, the defendants doing business under that name, wrote the following letter:
'Spokane Livestock Com. Co.
'By Art Schmidt, Mgr.'
'as mo
Shortly after the Spokane Livestock Commission, through E. A. Jones, its 'Salesman & Field Mgr.,' wrote the plaintiff the following letter:
'E. A. Jones.'
The plaintiff, pursuant to the request of the last paragraph of the above letter, made no complaint to the Montana Livestock Commission, but the defendants later redelivered the $447.50 therein mentioned to Bruns.
In this action, the plaintiff sought a recovery of that sum on three theories: Conversion, wrongful violation of escrow, and estoppel. We need consider the first theory only.
In resisting the conversion theory, the defendants contended first, that the cattle actually belonged to Byers; and, second, and in the alternative, that the defendants, constituting, as they did, a 'market agency' under the Federal Packers and Stockyards Act of 1921, 7 U.S.C.A. § 181 et seq., could not lawfully be held liable for a conversion...
To continue reading
Request your trial
-
In re Samuels & Co., Inc.
...Sig Ellingson & Co., 205 Minn. 537, 286 N.W. 713, cert. denied, 308 U.S. 599, 60 S.Ct. 130, 84 L.Ed. 501 (1939), and Moderie v. Schmidt, 6 Wash.2d 592, 108 P.2d 331 (1940) market agent liable for sale of mortgaged or stolen cattle; Birmingham v. Rice Bros., 238 Iowa 410, 26 N.W.2d 39, 2 A.L......
-
Citizens State Bank of Dalhart v. Farmers Union Livestock Co-op. Co.
...N.W. 416, where there was a chattel mortgage on sheep shipped to and sold to the market agency. It was followed also in Moderie v. Schmidt, 6 Wash.2d 592, 108 P.2d 331, where the market agency was held liable to the owner having paid a drover from whom it received cattle the full purchase p......
-
East Cent. Fruit Growers Prod. Credit Ass'n v. Zuritsky.
...v. Siman, 65 S.D. 514, 275 N.W. 347; Crosby v. Fresno Fruit Growers' Co., 30 Cal.App. 308, 158 P. 1070; Moderie v. Schmidt, 6 Wash.2d 592, 108 P.2d 331; Hoven v. McCarthy Bros. Co., 163 Minn. 339, 204 N.W. 29; Ellestad v. Northwestern Elevator Co., 6 N.D. 88, 69 N.W. 44; Four County Agricul......
-
Birmingham v. Rice Bros.
...in the first part of this opinion. The Supreme Court of Washington decided the same proposition in Moderie v. Schmidt, 6 Wash.2d 592, 108 P.2d 331, 334, holding a commission company liable in conversion to the owner of cattle after said factor paid the proceeds of the sale to the drover fro......