Norfolk Natl. Bank v. Wood, Bancroft & Co.

• Decision Date: 29 September 1891
• Citation: 49 N.W. 958,33 Neb. 113
• Parties: NORFOLK NATL. BANK v. WOOD, BANCROFT & CO
• Court: Nebraska Supreme Court

49 N.W. 958

33 Neb. 113

NORFOLK NATL. BANK v. WOOD, BANCROFT & CO

Supreme Court of Nebraska

September 29, 1891

ERROR to the district court for Stanton county. Tried below before NORRIS, J.

REVERSED AND REMANDED.

Holmes & Hayes, for plaintiff in error, cited, as to the description: Price v. Comas, 21 Neb. 198; Wiley v Shars Id., 716.

Allen Robinson & Reed, contra, cited, as to the wife's agency Moffitt v. Cressler, 8 Iowa 122; Wood Mach. Co. v. Crow, 30 N.W. [Ia.], 609; Furman v. R. Co., 17 Id., 599; McLaren v. Hall, 26 Iowa 297; Miller v. Hollingsworth, 33 Id., 224; 9 Am. & Eng. Ency. of Law, 839, sec. 3.

OPINION

MAXWELL, J.

This is an action for conversion of one hundred head of cattle.

The answer is a general denial.

On the trial of the cause the jury returned a verdict for the defendant upon which judgment was rendered.

The plaintiffs claim a special interest in the cattle by virtue of a chattel mortgage as follows:

"The undersigned, of sec. 7, town 25, range 1 west, county of Pierce, state of Nebraska, for the purpose of securing the payment of $ 1,900 and interest according to the condition of one promissory note of even date herewith as follows: one note payable March 24, 1888, for $ 1,900 and signed by John Welch and Michael Welch, do hereby sell and mortgage unto the Norfolk National Bank, and its assigns, the following described property now in my possession in said county and state, and free from all incumbrance, to-wit: forty head of steers, three years old next spring, being all steers of that age owned by us; sixty head of steers, two years old next spring, being all of that age we own except forty head. All of the above are branded with figure 4 on left hip and are kept on the Verges farm, Sec. 7, Tp. 25, R. W., Pierce county, Nebraska, now in our possession as tenant; Provided, That if the undersigned shall pay the said debt then this mortgage shall be void, and it is hereby agreed that if default be made in the payment of said debt or any part thereof, or if any attempt be made to remove or dispose of said property; or if at any time the said John and Michael Welch shall neglect or refuse to care for said chattels in a husbandlike manner, or whenever the said Norfolk National Bank may choose, he is hereby authorized to enter upon the said premises where the said property may be, and remove or sell the same at public or private sale without notice, and out of the proceeds retain the amount then owing on the said debt with expenses attending the same, and attorney's fees, rendering to the undersigned the surplus after the whole of said debt shall have been paid, with charges aforesaid; if from any cause said property shall fail to satisfy said debt, interest, costs, and charges, I covenant to pay the deficiency.

"Signed this 22d day of September, 1887.

"JOHN WELCH. [SEAL.]

"MICHAEL WELCH. [SEAL.]

"In presence of

"N. A. RAINBOLDT."

The court gave the following instructions:

"I. Plaintiff alleges that on the date specified in his petition he had a special ownership in certain steers described in the petition, by virtue of a chattel mortgage executed in favor of plaintiff by John Welch and Michael Welch to secure the payment of $ 1,900 due on the 24th day of March, 1888, and that defendant on same day, between the day of the making of said note and the day the same became due, obtained possession of said steers and converted the same to his own use, to the plaintiff's damage in the sum of $ 1,500.

"II. Defendant denies every averment of plaintiff's petition excepting the corporate capacity of plaintiff, which is admitted.

"III. In this case the burden of proof is upon plaintiff to prove all the material allegations of his petition. Plaintiff claims a special ownership in the property in controversy by virtue of a chattel mortgage. The holder of a chattel mortgage holds the legal title to the property described therein and may follow and take possession of the same wherever it can be found and identified. In this case it devolves upon plaintiff to prove, by a fair preponderance of the evidence, that the cattle claimed by him in this action were the same, or are part of the same, described in the mortgage executed by John and Michael Welch in favor of plaintiff, before he can recover.

"IV. You are instructed that the validity of the chattel mortgage in controversy is a question of law to be decided by the court, and that the court had decided the same to be valid; the only question for you to decide is whether or not the cattle claimed by plaintiff are described in said chattel mortgage.

"V. The jury are instructed as a principle of law that the representations of defendant or its agent, or one in whose charge or custody its cattle may have been left, are admissible in evidence...