Rice Brothers v. Davis

• Decision Date: 11 May 1903
• Citation: 74 S.W. 431,99 Mo.App. 636
• Parties: RICE BROTHERS, Respondents, v. DAVIS, McDONALD & DAVIS et al., Appellants
• Court: Kansas Court of Appeals

74 S.W. 431

99 Mo.App. 636

RICE BROTHERS, Respondents, v. DAVIS, McDONALD & DAVIS et al., Appellants

Court of Appeals of Missouri, Kansas City

May 11, 1903

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

Johnson Rusk & Stringfellow and Boyle, Guthrie & Hurt for appellants.

(1) It is competent for the parties at any time to totally disregard the original contract and substitute another in its place. Henning v. U. S. I. & S. Co., 47 Mo. 425; Vastine v. Wayman, 5 Mo.App. 598; Jacobs v Maloney, 64 Mo.App. 270; 21 Am. and Eng. Ency. of Law (2 Ed.), 663. The result of such novation is the extinguishment of the original obligation and all its incidents. 21 Am. and Eng. Ency. of Law, 674-5. (2) The purport of the instrument is to be gathered from the general tenor of it, and not from any particular clause. Schuetze v. Bailey, 40 Mo 69; Johnson v. Wood, 84 Mo. 489; McCullock v. Holmes, 111 Mo. 445; Belch v. Miller, 32 Mo.App. 387. The chief object in the interpretation of contracts which are in any way ambiguous, is to get at the intention of the parties who made them. Brewing Co. v. Waterworks Co., 34 Mo.App. 49; Ice Co. v. Heinze, 102 Mo. 245; Carter v. Arnold, 134 Mo. 195; Bent v. Alexander, 15 Mo.App. 181.

Beardsley, Gregory & Kirshner for respondents.

(1) The debt from Moseley to Rice Brothers, growing out of the Wheeler transaction, is of the class described in the mortgage in the third paragraph describing the debts intended to be secured by the mortgage, and is so secured. Holmes v. Commission Co., 81 Mo.App. 97; Coon v. Cattle Co., 8 N. M. 123; 42 P. 77; McDaniels v. Colvin, 16 Vt. 300; 42 Am. Dec. 512; Jones on Mortgages, secs. 343, 344, 345, 346, 365; Jones on Chattel Mortgages (4 Ed.), secs. 86, 94; Lawrence v. Tucker, 23 How. 14; Magirl v. Magirl, 89 Ia. 342; 56 N.W. 510; Shoe Co. v. Wilson, 63 Mo.App. 330; Williams v. Allnutt, 72 Mo.App. 65; Glenn v. Seeley, 61 S.W. 959; Kingsland Co. v. Board Bros., 60 Mo.App. 662; Lanier v. McIntosh, 117 Mo. 508. (2) It is a common occurrence to have a mortgage secure various items of indebtedness accruing to various persons. The following cases are instructive on this point. Printing Co. v. Roeder, 44 Mo.App. 324; Trust Co. v. Smythe, 94 Tenn. 513; 27 L. R. A. 663; Jones on Chattel Mortgages (4 Ed.), secs. 503, 504, 512; Harman v. Barhydt, 20 Neb. 625; 31 N.W. 488; Studebaker v. McCurgur, 20 Neb. 500; 30 N.W. 686; Holway v. Gilman, 81 Me. 185; 16 A. 543. (3) By the terms of the mortgage itself, and by the nature of the transactions, the money arising out of sales of Moseley's cattle must be first applied to the payment of the $ 33,285.50 note. (4) The instruction given by the court was correct.

ELLISON J.

OPINION

ELLISON, J.

--This is an action for the conversion of a lot of cattle. The judgment in the trial court was for plaintiffs. The statement of facts out of which the controversy arises is somewhat complicated; and while it was, perhaps, well enough that the parties should have set forth the details of the case with the particularity they have, it is believed the following will be a sufficient statement for a full understanding of the ground of our decision.

One J. W. Mosely gave a note payable to plaintiffs, or order, dated September 5, 1899, for $ 33,285.50 with seven per cent interest. He likewise executed a chattel mortgage on a large lot of cattle, a part of which are the subject of this suit, to secure the note and future indebtedness. Afterwards, plaintiffs assigned and delivered this note to the National Bank of Commerce of Kansas City. Afterwards, Mosely being interested with one Wheeler in certain other cattle, he and Wheeler executed their three promissory notes to plaintiffs aggregating $ 15,433.68, and secured such notes by chattel mortgage on the last-named cattle. The greater part of the last of these notes to fall due was not paid. The note for $ 33,285.50 was yet unpaid at this time. The provisions of the mortgage first mentioned as to the indebtedness and its order of payment are as follows, viz.: There shall be paid:

"1. The indebtedness above described, when the same becomes due, either as above set forth, or by the terms of any extension or of any renewal note or obligation.

"2. All sums loaned, advanced or expended by the second parties for the maintenance or transportation of said property, or for any purpose connected therewith, and all indebtedness to the second parties, as commission or otherwise for services in connection with any part of the same.

"3. All indebtedness of any character created or maturing while any indebtedness of the character mentioned in the two foregoing paragraphs remains unpaid.

"It is understood that any future transactions by which the first party may become indebted to the second parties during the existence of this mortgage are to be based upon the same as security."

The court tried the case without the aid of a jury and gave for plaintiff the following declaration of law:

"If the court finds from the evidence that after the making of the $ 33,285.50 note and mortgage by Mosely, he, together with one Wheeler, executed three notes, referred to in evidence, to Rice Brothers, and said notes matured respectively on the 5th days of October, November and December, 1899, and at the time of the maturity of the last of said notes there remained a balance thereon unpaid, then, in that event, the balance of said indebtedness growing out of the notes signed by Wheeler and Mosely together was an indebtedness created and an indebtedness maturing while the $ 33,285.50 note remained unpaid, and is secured by the mortgage covering the seventy-seven head of cattle in controversy, and the court will find for the plaintiffs under the second count in their petition, unless the court shall find under the other instruction offered herewith that the balance arising out of the Wheeler and Mosely indebtedness was satisfied out of the sale of cattle covered by the Mosely mortgage. And in the event the finding is for plaintiffs under this count, the court may add to the amount which it is agreed is the value of the cattle, namely $ 3,272.11, interest on said sum, if the court shall see fit to do so, at the rate of six per cent per annum from March 2, 1900, until this time."

The effect of the declaration was to hold that the provisions of the original...