P. J. Black Lumber Co. v. Turk
| Decision Date | 24 November 1936 |
| Docket Number | 1958 |
| Parties | P. J. BLACK LUMBER CO. v. TURK, ET AL |
| Court | Wyoming Supreme Court |
Rehearing denied January 5, 1937, Reported at: 50 Wyo. 361 at 377.
APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.
Action by the P. J. Black Lumber Company against Anna M. Turk and others. From an adverse judgment, plaintiff appeals. Rehearing denied--see 63 P.2d 805.
Affirmed.
For the appellant there was a brief by Richard J. Jackson and M. S Reynolds of Cheyenne and oral argument by Mr. Jackson.
The action involves chattel mortgages, one executed to plaintiff by Turk and wife on cattle, dated February 21, 1930, and subsequent chattel mortgages executed to John H. Conway or Standard Loan Company, a name under which Conway at times transacted business. All of said mortgages are described in the pleadings. There is no controversy about plaintiff's mortgage or the note it secures. The defendants contend that all the cattle mortgaged to plaintiff have died, or have been sold with the plaintiff's consent, and that the cattle now owned by the Turks are different cattle, purchased with money loaned by Conway and are not subject to the mortgage of plaintiff. Plaintiff prayed for the allowance of an attorney fee, as stipulated in its notes, in the event of suit. Plaintiff and appellant complains of the verdict and judgment below, on the grounds, First, that all the cattle owned by the Turks bear the brand that was described in plaintiff's mortgage, and under the Wyoming Statute, Section 71-102, R. S. 1931, cattle are identified by brand. See Megown v. Fuller, et al., 38 Wyo. 211; Second, also that it was established by the evidence that the cattle mentioned in the Conway mortgages were not described by brand, or in any other manner, to distinguish them from any other cattle; Third, that the evidence established that the reasonable attorney's fee for prosecuting plaintiff's suit is $ 150,000, whereas the jury found a reasonable attorney's fee to be $ 50.00. The statutory provision above referred to, for the identification of cattle, has been in force in this state for 53 years, and the identity of the cattle brand, used by the defendants Turk and wife, was established by brand officials, it being known as the "wagon hammer" brand. The Conway mortgages are void for insufficient description of the cattle. Plaintiff's mortgage covered after-acquired property purchased in the course of business to replace the property mortgaged. Section 71-114, R. S. 1931. A mortgage executed and recorded first in point of time, takes precedence over a mortgage on the same property subsequently executed and recorded. McCord, Brady & Co. v. Bank, 6 Wyo. 507. Plaintiff's mortgage was dated and indexed about two years prior to the first Conway mortgage. The case of Rue v. Merrill, 42 Wyo. 511, recognizes this statute as a departure from the common law rule, in permitting the increase and additions to existing property to be transferred by mortgage. The Veta mortgage also described the Turks' cattle by brand, indicating that the Turks used this brand as occasion required, even though it was not recorded. So far as a purchase money mortgage is concerned, this court does not seem to have passed upon its effect, and the authorities are in conflict as to whether such a mortgage takes precedence in a case of this kind. See Dunn v. Hastings, 34 A. 256; Collerd v. Tully, 77 A. 1079; contra Hammel v. First National Bank, 88 N.W. 397. In the case of New Orleans R. Co. v. Mellen, 12 Wall (U.S.) 362, it was held that a mortgage intended to cover after-acquired property can only attach itself to such property in the condition it comes into the mortgagor's hands. There are other cases to a like effect. Fosdick v. Schall, 99 U.S. 235; Smith v. Hill, (New Mexico) 134 P. 243; Steckel v. Swift & Company, 56 N.W. 806; Bank v. Leidecker Tool Company, (Okla.) 178 P. 690. See also Kirby v. Carey, 200 N.W. 965. The general rule seems to be that a mortgage description of livestock by mere number alone, is so vague and indefinite as to render such description void. Jones on Chattel Mortgages (Bowers Ed.), p. 102, Sec. 54c; Sheffield v. Dean, 135 S.E. 109; Bank v. Gamhle, (S. C.) 148 S.E. 626; Bank v. Marlin, (Texas) 166 S.W. 499; Moebus v. Collins, (N. J.) 89 A. 986; Burke v. Linkmyer, (32 Ohio C.C.) 22 C. D. 188; State v. Hurt, (Mo.) 183 S.W. 333. If the Conway mortgage is operative at all, which we deny, it can be operative only upon these cattle as after-acquired property, which would give plaintiff's mortgage precedence over the Conway mortgages. Bank v. Freeman, 171 U.S. 620. Under this view of the evidence, plaintiff's mortgage is a first and prior lien upon the cattle. The evidence as to the reasonableness of an attorney's fee of $ 150.00 in this case was uncontradicted. While the jury were authorized to use some discretion, as stated in Bank v. Christensen, 32 Wyo. 69, it was further held in that case, that where the finding is so small that justice has not been done, the court may grant a new trial. We feel that the award of $ 50.00 for attorney's fee is unreasonable, considering the amount of work required. Although this was an equity case, not requiring a jury (Burns v. National Bank, 33 Wyo. 474), the court permitted the cause to be tried to a jury as it had the right to do. League v. Otterson, 7 Wyo. 89; Lellman v. Mills, 15 Wyo. 149. But the verdict of a jury in an equity case is purely advisory, the judgment of the court being controlling. We feel that plaintiff should have a judgment of foreclosure of its mortgage against the defendants herein, and that it would be proper in view of the circumstances for the Supreme Court to enter final judgment herein, directing such foreclosure. Wilde v. Lodge Company, 41 P.2d 508.
For the respondents, there was a brief and the cause was argued orally by Water Q. Phelan of Cheyenne, Wyoming.
The cause was submitted to a jury at the request of defendant without objections on the part of plaintiff. The jury found that defendants, Oscar M. Turk and Anna M. Turk were indebted to the plaintiff in the sum of $ 531.85 and the further sum of $ 50.00 as attorney fees for the foreclosure of the mortgage. There was no conflict as to the amount due on the Plaintiff's notes. Plaintiff proceeded upon the theory that the cattle belonging to Turk and wife, at the time of the commencement of plaintiff's action, were branded the same as the cattle described in plaintiff's mortgage executed February 21, 1930. Defendant Conway had several mortgages on these cattle. The jury found that the brands described in the mortgage given by the Turks to the plaintiff were not the same as the brands on the cattle described in the mortgages given by the Turks to defendant Conway in 1932 and thereafter. There being sufficient evidence to sustain these findings, we do not believe this court will disturb them on appeal. We contend that there is sufficient evidence to sustain these findings. Plaintiff's counsel seems to be confused as to the situation regarding the defendants' brands. An examination of the plaintiff's mortgage will show the brand described. The brand on defendants' cattle at the time the mortgage was executed called the "wagon hammer" brand was in reverse form. The brand on defendants' cattle on the date of the Conway mortgage, and the only brand owned by defendants at that time, differed in form, and was designated by the brand inspector as an "open box slice" brand. Mr. Black testifying for plaintiff stated that he was not prepared to say that the cattle and the brands thereon described in plaintiff's mortgage were the same as described in defendant's mortgage, and Oscar M. Turk testified to the same facts. The evidence clearly established the fact that the cattle owned by the Turks upon the commencement of this suit were not branded with the same brand as the cattle described in plaintiff's mortgage. In view of the evidence and findings of the jury, it is difficult to understand the motive of the plaintiff. Upon the face of the record, we insist that this court should affirm the judgment, and tax as part of the costs a reasonable attorney's fee to be paid to counsel for defendants, under the provisions of Section 89-4804, W. R. S. 1931.
Richard J. Jackson and M. S. Reynolds in reply.
Anna M. Turk and Oscar M. Turk in their separate answer in this cause alleged that they executed and delivered to the plaintiff a chattel mortgage, as set forth in paragraph 5 of plaintiff's petition, but deny that said mortgage was intended to extend to all livestock acquired by these defendants after the execution of said mortgage. It is apparent that the essential elements of plaintiff's case are admitted by defendants. Oscar M. Turk testified that none of the cattle included in the Black mortgage are branded the same as any of the cattle included in the Conway mortgage. The defendants attempted to inject an entirely new and different theory into the case--that is that a variation of a few degrees in the slant of the handle of the brand made by the party preparing the mortgage, will operate to defeat the mortgagee of its security. If there is confusion with respect to brands, it was injected into the case by the defendants themselves, for the purpose of defeating the claims of plaintiff.
This is an action brought by the P. J. Black Lumber Co., a Corporation, against Anna M. Turk, Oscar M. Turk, hereinafter mentioned as the mortgagors, and John H. Conway, and the Standard Loan Company, to foreclose a mortgage given by the Turks to the plaintiff to secure a promissory note, and to declare the mortgages given to Conway, either directly or...
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