Rice v. Davis

• Decision Date: 11 May 1903
• Citation: 99 Mo. App. 636,74 S.W. 431
• Parties: RICE et al. v. DAVIS et al.
• Court: Missouri Court of Appeals

74 S.W. 431

99 Mo. App. 636

RICE et al. v. DAVIS et al.

Court of Appeals at Kansas City, Missouri.

May 11, 1903.

MORTGAGE—DEBT SECURED—SUBSEQUENT INDEBTEDNESS.

1. A mortgage on certain cattle, given to secure a note, provided that there should be paid, first, the debt described, secondly, sums loaned, etc., by the second party for the maintenance of the cattle, and, thirdly, all indebtedness created while any indebtedness mentioned previously should remain unpaid. The payee assigned the note, and, before the same was paid, the mortgagor gave other notes to the payee. Held, that the mortgage secured as a first claim the first note in the hands of the assignee, together with moneys paid out for maintenance of the cattle, and subject to such claims secured the latter notes.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by E. W. H. Rice and others against W. F. Davis and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

L. C. Boyle, for appellants. Beardsley, Gregory & Kirshner, for respondents.

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 detail 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 7 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:

"1st. 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.

"2nd. 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.

"3rd. 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 Bros., 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...