Parlin & Orendorff Co. v. Spencer

• Decision Date: 10 June 1893
• Citation: 51 Kan. 566,33 P. 363
• Court: Kansas Supreme Court
• Parties: THE STANDARD IMPLEMENT COMPANY v. THE PARLIN & ORENDORFF COMPANY

33 P. 363

51 Kan. 566

THE STANDARD IMPLEMENT COMPANY v. THE PARLIN & ORENDORFF COMPANY

Supreme Court of Kansas

June 10, 1893

Error from Barber District Court.

ON April 15, 1889, The Parlin & Orendorff Company commenced its action against one L. M. Spencer for a debt of $ 935.22 and caused an attachment to issue against his property. The order of attachment was delivered to George W. Stevens sheriff, at 12 o'clock and 15 minutes A. M. of that date and executed at 4 o'clock and 30 minutes A. M. of the same day, by levying upon a large quantity of merchandise at Kiowa, Barber county, consisting of various kinds of machinery, agricultural implements, buggies, and wagons. On the 14th day of May, 1889, The Standard Implement Company claiming the property, filed its motion to discharge the same, which came up for hearing on the 28th day of September, 1889, but during the hearing, by leave of court, the motion was withdrawn from the further consideration of the court, without prejudice, with leave to refile the same or other motions. Afterward, on the 22d day of October, 1889, the Standard Implement Company filed its motion to discharge the attached property, which motion was duly verified, and set forth that prior to and at the time of levying the writ of attachment it was the absolute owner of a part of the goods levied upon, and had a special ownership in the balance of the property by virtue of two chattel mortgages. On November 26, 1889, on leave of court, the Parlin & Orendorff Company filed a general denial to the Standard Implement Company's motion, and on the same day, on motion of the Standard Implement Company, the verification to the Parlin & Orendorff Company's answer was stricken out, no leave having been granted to verify. On the same day, November 26, 1889, the same being a regular judicial day of the November term, 1889, of said court, this cause came on for hearing upon the Standard Implement Company's motion; the Parlin & Orendorff Company demanded a jury, which was consented to by the Standard Implement Company; and thereupon a jury was impaneled and sworn to try the issues, at which time the court ruled that the burden of proof was upon the Standard Implement Company, to which ruling of court the Standard Implement Company excepted at the time; whereupon the cause proceeded to trial, and evidence was introduced by affidavits, record, and oral testimony, and the trial proceeded from day to day until all the evidence offered and allowed by the court had been introduced. On the 4th day of December, 1889, the jury returned a verdict, finding generally for the Parlin & Orendorff Company. On the same day the Standard Implement Company filed its motion to vacate and set aside the verdict of the jury, and to render judgment in favor of the Standard Implement Company, discharging and dissolving the attachment, and releasing to them all the property attached in said cause, and especially the property as shown by "exhibit B" to the sheriff's return; and, during the argument of said motion, the court asked the attorneys for the Standard Implement Company whether they desired the court to pass upon all questions of fact, independent of the findings of the jury, and the attorneys informed the court that they so requested. Thereupon, the court passed upon the questions of fact, independent of the findings of the jury, and upon the merits of the motion and the merits of the case, independent of the findings of the jury, and in so doing considered the evidence introduced by the Standard Implement Company in support of its motion, and by the Parlin & Orendorff Company against the motion, and overruled the Standard Implement Company's Motion, and sustained the attachment so far as the Standard Implement Company was concerned, to which ruling of the court the Standard Implement Company excepted at the time. On the 5th day of December, 1889, the Standary Implement Company filed its motion for a new trial, which motion was by the court overruled, and judgment rendered by the court overruling the Standard Implement Company's motion, and granting judgment in favor of the Parlin & Orendorff Company against the Standard Implement Company for the costs of the proceedings. On December 7, 1889, the court rendered judgment in favor of the Parlin & Orendorff Company against the defendant L. M. Spencer, for the amount claimed in plaintiff's petition, and sustained the attachment proceedings against the defendant. The Standard Implement Company excepted to the rulings and judgment of the court, and brings the case here.

Judgement affirmed

Overstreet & Denton, and R. O. Boggess, for plaintiff in error:

The court erred in ruling that the burden of proof at the trial of the motion was upon the plaintiff in error. See White-Crow v. White-Wing, 3 Kan. 276; Civil Code, §§ 193, 344.

The first chattel mortgage--that is, the chattel mortgage for $ 3,000, which was delivered by J. N. Eastwood to J. H. Hall register of deeds, with payment of fees for filing the same, and the request that the same be filed in the register's office--was notice to third parties of the existence of such mortgage from the time the same was so delivered to said register, on Sunday afternoon, April 14, 1889. If the register was not then at his office, the mortgagee could not deposit it in the office of the register; but he delivered it to the register, paid him the fee for filing it in his office, and requested him to file it. The mortgagee could do no more; if the register failed to do his duty, failed and neglected to file it in his office until the next morning, or the next month thereafter, the rights of the mortgagee could not be affected or prejudiced thereby, especially in a contest with simply another creditor. Horsley v. Garth, 44 Am. Dec. 394; Mangold v. Barlow, 48 id. 85; Hoffman v. Mackall, 64 id. 639; Green v. Garrington, 91 id. 106; Throckmorton v. Price, 91 id. 334.

The acts done on the morning of the 15th of April, before the levy of the attachment, under all the circumstances of the case, constituted in law a delivery of the possession of the store building and the stock of goods in question from L. M. Spencer to the Standard Implement Company. See Stinson v. Clark, 3 Allen, 340; Swiggett v. Dodson, 38 Kan. 702.

The plaintiff in error did all it reasonably could or ought to have done, at the time and place and under the existing circumstances. Can it be successfully maintained that plaintiff in error, in order to maintain its rights under the mortgages and actual possession, ought to remain at the store all night, guard and defend it with force and arms, instead of locks and keys? All other people maintain their possession and protect their rights of property, by the latter means, against all the world, except trespassers and thieves. Why should not the plaintiff in error do likewise? Cameron v. Morris, 26 Kan. 612; Tootle v. Coldwell, 30 id. 125; McVay v. English, 30 id. 368; Petring v. Chustler, 90 Mo. 649; Dobyns v. Meyer, 95 id. 132.

Plaintiff assigns as error that the judgment of the court below was contrary to the evidence and the law, and contends that, considering the evidence and testimony as shown by the record in the light of its competency, relevancy, and materiality, the judgment of the court below ought not only to be reversed, but judgment rendered in favor of the Standard Implement Company, sustaining its motion to discharge the property claimed by it from the levy under the order of attachment issued in this case.

A vigilant creditor is entitled to the advantages secured by his watchfulness and attention to his own interest. Randall v. Shaw, 28 Kan. 422.

It is clearly shown that, while the aggregate of the two mortgages was in excess of the amount of the indebtedness, it was only intended to secure the actual amount of indebtedness, and the fact that the aggregate amount of the consideration expressed in the mortgage is in excess of the bona fide indebtedness does not render the security void. Bush v. Bush, 33 Kan. 557; Hughes v. Shull, 33 id. 127; Allen v. Fuget, 42 id. 674.

The transfer of the $ 1,800 worth of Standand Implement Company's goods, to be credited as a payment on L. M. Spencer's indebtedness, was good under the evidence, though unaccompanied by possession. Gen. Stat. of 1889, ch. 43, § 3, and authorities cited. But the evidence shows conclusively, and is uncontradicted, that the Standard Implement Company, by its representative, J. N. Eastwood, took the actual possession of these goods. It was at a late hour in the night. He remained with them until after 3 o'clock in the morning, and went to the hotel and retired, being the sole possessor of a key to the building. The law does not require unreasonable things; and it was not necessary, under the circumstances, to tear down L. M. Spencer's signs, and to post notices that the goods were in possession of Standard Implement Company; and the fact that the transaction was in the nighttime raises no presumption of fraud, and is not sufficient evidence from which fraud can be inferred. It simply shows vigilance, diligence and activity on the part of the Standard Implement Company.

There is no evidence in the record showing actual fraud upon the part of the Standard Implement Company; and we contend that the circumstances surrounding the transaction will not authorize an inference of fraud, because fraud can only be inferred to the extent that the fraud is worked. The law presumes against fraud and in favor of good faith. Broom, Leg. Max. 947, and authorities cited. See, also, Wilson v. Berg, 88 Pa. 167; Kay v. Noll, 20 Neb. 386.

The evidence offered, and admitted by the court, on behalf of the Parlin & Orendorff Company, defendant in error, as to the conduct and...