Reese v. Kapp
| Decision Date | 09 April 1910 |
| Docket Number | 16,483 |
| Citation | 108 P. 96,82 Kan. 304 |
| Parties | JOHN B. REESE et al., a Partnership, etc., Appellants, v. SAMUEL KAPP, Appellee |
| Court | Kansas Supreme Court |
Appeal from Leavenworth district court; ELI NIRDLINGER, judge pro tem. Reversed.
Judgment reversed.
SYLLABUS BY THE COURT.
SALES -- Mortgagor of Chattels -- Oral Consent of Mortgagee -- Legality. A mortgagor of chattels may, with the oral consent of the mortgagee, make a valid sale of the mortgaged property and convey a good title thereto to a purchaser in good faith, notwithstanding the provisions of chapter 105 of the Laws of 1901 (Gen. Stat. 1909, § 5239), making it a misdemeanor to sell or dispose of mortgaged property without the written consent of the mortgagee.
W. B Brownell, and Arthur M. Jackson, for the appellants.
W. W. Hooper, for the appellee.
This action was to recover the purchase money due on a sale of cattle. A counterclaim for damages was interposed by reason of a mortgage on the property. Judgment was given for the defendant, and the plaintiffs, Reese & Son, appeal.
At the time of the sale there was a mortgage outstanding on the cattle, held by a commission firm at Kansas City. When the purchase was made a check for $ 1000 was given by the purchaser, and two days later, when the cattle were shipped, a check for the balance, $ 5450, was given. Both checks were drawn on the Linwood State Bank. The cattle were shipped from Fall Leaf, Kan., and were consigned to a firm in St. Louis, Mo., for feed at Kansas City, on account of Cole & Ott, under an arrangement by which the cattle might be sold at Kansas City by Cole & Ott with the permission of the defendant. On arrival at Kansas City the cattle were placed in the pens of Cole & Ott at the stockyards to be fed and watered. About the same time a member of the plaintiffs' firm presented the 1000-dollar check at the bank in Linwood. Previous to shipping the cattle the defendant had drawn a sight draft in favor of the bank on Cole & Ott for $ 1000, with which to meet this check, and it appears that he intended to provide for the payment of the other check out of the proceeds of the sale of the cattle; but when the first check was presented he did not have sufficient funds in the bank, and the cashier telephoned to Cole & Ott, inquiring whether the sight draft would be paid. At the request of Cole & Ott the defendant, who was then in their office, answered directing the bank to refuse payment of the checks. The reason given by the defendant at the trial for this order was that he had just been informed of the existence of the mortgage and that he had then stated that he would have nothing more to do with the cattle. The plaintiffs, however, testified that the defendant told them that his reason was that parties who were going in with him would not pay up their share of the money. The mortgagee was immediately notified of the refusal of the bank to pay the 1000-dollar check, and calling up the cashier learned that the 5450-dollar check, which the plaintiffs were about to use to satisfy the mortgage, would not be paid. Thereupon the mortgagee notified Cole & Ott of its mortgage. The defendant then refused to have anything more to do with the cattle, and they were sold by Cole & Ott upon the market with the consent of the mortgagee, the defendant saying that he was done with them. An account of the sale was made by Cole & Ott, reciting that the sale was for account of Samuel Kapp. The proceeds were paid over to the mortgagee, and after deducting the mortgage indebtedness the balance was paid to the plaintiffs, who gave the defendant credit for the net proceeds, leaving a balance due to them on the cattle, for which amount this suit was brought.
The plaintiffs' evidence tended to show that the defendant had been informed of the mortgage before the cattle were shipped and that...
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