National Live Stock Credit Corporation v. Thompson

• Decision Date: 20 May 1935
• Docket Number: No. 1153.,1153.
• Citation: 76 F.2d 696
• Parties: NATIONAL LIVE STOCK CREDIT CORPORATION OF ST. LOUIS v. THOMPSON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

76 F.2d 696 (1935)

NATIONAL LIVE STOCK CREDIT CORPORATION OF ST. LOUIS v. THOMPSON et al.

No. 1153.

Circuit Court of Appeals, Tenth Circuit.

April 1, 1935.

Rehearing Denied May 20, 1935.

Francis C. Wilson, of Santa Fe, N. M. (C. M. Strawman, of Santa Fe, N. M., on the brief), for appellant.

E. R. Wright, of Santa Fe, N. M., and Marvin T. Johnson, of Tulsa, Okl. (R. A. Kleinschmidt, of Tulsa, Okl., on the brief), for appellees.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

McDERMOTT, Circuit Judge.

Defendants owned 1,183 head of two-year-old steers, 560 of which were held by the brand "V on left hip"; 354 of these carried other brands; 111 steers, with a "DD" holding brand, also carried a "V" brand. In October, 1930, these were delivered to the possession of Vestring Brothers under a contract obligating Vestring Brothers to feed and care for them until September 15, 1931, at which time they were to be sold; defendants were to have $75,238.52 of the proceeds, and Vestring Brothers the balance. This contract was not recorded until after plaintiff's mortgage was taken.

In the fall and winter of 1930, these cattle were being fed in various pastures in Kansas; 300 head, the biggest part of which were branded "V" on the left hip, were on the De Witt Ranch in Chase County; 160 head, the most of them held by the "V" brand, were on the Green Ranch near Burns;¹ 303 head — all branded "V" on left hip — were in the Rafferty or Fluke pastures in Chase County. It thus appears from plaintiff's own witnesses, that the 560 head of "V" cattle owned by defendants were on the De Witt, Green and Fluke pastures on November 17, 1930.

On November 17, 1930, Vestring Brothers mortgaged to plaintiff "700 good to choice Hereford three-year-old steers branded V on left hip * * * now located on the Vestring farm five miles northeast of Burns, County of Marion and County of Chase, State of Kansas"; 100 head, similarly described except no location was given, were covered by another mortgage executed the same day.² Shortly thereafter defendants learned that the Vestrings had given a mortgage on "V" cattle, but the Vestrings owned older steers branded "V" on left hip, and the Vestrings assured defendants that they had not mortgaged defendants' steers.³ In the spring of 1931, defendants advanced considerable sums of money to the Vestrings to feed their cattle.

In the fall of 1931 defendants moved their cattle to market, doing it openly and with no suggestion from the Vestrings that they were mortgaged to plaintiff. At the Kansas City market, defendants' steers were looked over by Myers, the representative of plaintiff who identified on the ground the cattle covered by plaintiff's mortgage when the mortgage was given. Myers did not then suggest that these were the cattle mortgaged to plaintiff; on the contrary, he stated that plaintiff intended to hold the cattle mortgaged for a better market.

In the spring of 1932 plaintiff could not locate the steers covered by its mortgage. Vestring told plaintiff that defendants had shipped them out the fall before. Plaintiff then brought this action for conversion. The court submitted to the jury the single issue whether the cattle defendants sold were those covered by plaintiff's mortgage. The jury found for defendants. Plaintiff appeals.

Many of the errors assigned are answered by the short statement that the court decided every legal question in favor of plaintiff, leaving to the jury the single question of identity. Defendants raised the issue that the cattle were mortgaged to a Tulsa bank, later paid; that when plaintiff took its mortgage, it had actual knowledge of defendants' ownership; that the contract, held by the trial court to be a conditional sales contract, was a pasturage contract, and other legal defenses. The trial court did not submit the issue as to whether plaintiff's mortgage was invalid for indefiniteness of description. On the contrary the court held as a matter of law that plaintiff's mortgage was a valid lien on the cattle covered by it; denied defendants' request to submit to the jury the issue of plaintiff's knowledge of defendants' contract; the court stripped the case of every defense except that the cattle taken by defendants were not those covered by plaintiff's mortgage. The court told the jury that plaintiff's mortgage was made prior to the recording of the conditional sales contract; that the jury must determine whether defendants' cattle were included in that mortgage; that from all the testimony the jury must "say from that whether or not the cattle of the Thompson Brothers turned over to the Vestring Brothers was included within the mortgage given to the plaintiff in this case. If it was, they had a valid mortgage on them, and were entitled to payment for them. Then, of course, you must determine whether or not the cattle that were taken by the defendants in this case, sold in the fall of 1931, were any of the cattle that had been mortgaged to the plaintiff in this case. If they had been mortgaged to the plaintiff in this case. The taking of such cattle, shipping to market, selling them, getting the proceeds, they would be guilty of conversion, as alleged in this complaint, and they would be liable to the plaintiff for the value of such cattle."

Plaintiff complains because the trial court declined to instruct the jury that a description in a chattel mortgage is "good and sufficient in law" if it is definite enough, aided by inquiries suggested by the instrument, to enable a reasonable person to identify the items mortgaged. If the trial court had submitted to the jury the issue of whether plaintiff's mortgage was invalid for indefiniteness of description, it would have been proper to have instructed them on the law as to definiteness of description. But the court ruled, as a matter of law, that plaintiff had a valid mortgage. Why then burden the jury with an instruction on a question which the court has decided? Why should plaintiff complain that the jury was not charged as to what it takes to make a valid mortgage, when the court charged them that plaintiff's mortgage was valid? Moreover, the court was right in deciding the question of validity, for the construction of documents is for the court except in certain cases where resort must be had to extrinsic facts.

In actions for conversion of mortgaged property, two distinct questions may be presented: (1) Is the mortgage invalid for insufficiency or indefiniteness of description? Unless resort must be had to extrinsic evidence, this question is for the court. The trial court here having held the mortgage valid, there was no issue to go to the jury on that point, and no occasion for any charge as to what is or is not a legally sufficient description. (2) Did defendants convert the property which was mortgaged? This question of identity is for the jury if reasonable men could draw different conclusions from the evidence. A mortgage might describe a steer with such meticulous detail as to age, brands, breed, color, and location, as to be indisputably valid, yet if defendants exercised dominion over another animal of the same description, there would be no liability. The Supreme Court of Kansas has recently dealt with the exact situation here, and since these cattle were mortgaged in Kansas,...