Schmidt v. Rankin
| Citation | 91 S.W. 78,193 Mo. 254 |
| Parties | SCHMIDT et al., Appellants, v. RANKIN |
| Decision Date | 22 February 1906 |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Henry M. Ramey, Judge.
Reversed and remanded.
Beardsley Gregory & Kirshner for appellants.
(1) The court erred in giving instruction 2 on behalf of defendant. It was error on the part of the court to instruct the jury that though they might believe some of the cattle bought by defendant and by his firm were the cattle covered by the mortgage in controversy, yet if they could not tell the exact number of the cattle covered by the mortgage which were bought by Rankin and his firm, then the plaintiffs could not recover to any extent whatsoever. The plaintiffs were entitled to recover for such number of cattle as they proved to the satisfaction of the jury were covered by the mortgage and converted by defendant or his firm, although they might find that there was a large number, not being able, however to exactly determine that larger number. (2) The court erred in giving to the jury instruction 6, on behalf of defendant. This instruction is in direct conflict with instruction 1 and given on behalf of the plaintiffs, and which latter instruction correctly declared the law. Gillett may not have bought the cattle from Hollinger so that he might be said to have become their owner on August 20th, within the usual meaning of those terms. Yet, if he had himself taken the cattle under the authority which he had as agent, to sell, and sold to himself, such a sale to himself was not void, but voidable at the option of Hollinger. Barr v. Randall, 35 Kan. 129; Hoyt v. Latham, 143 U.S. 553; Remick v. Butterfield, 31 N.H. 70; Jennison v. Hapgood, 7 Pick. 1; Bohn v. Davis, 75 Tex. 24; Reddick v. Gressman, 49 Mo. 389; Ellis v. Peck, 45 Ia. 112; Golson v. Ebert, 52 Mo. 271; Johnson v. Outlaw, 56 Miss. 541; Railroad v. Solmer, 123 F. 855; Connelly v. Hammond, 51 Tex. 647; Grant v. Beard, 50 N.H. 129; Smith v. Johnson, 71 Mo. 383. The ratification afterward made by Hollinger had the effect of completing the sale as of the date prior to August 20, 1898. Boyle v. Zacharie, 6 Peters 644; Ferris v. Thaw, 72 Mo. 446; Suddarth v. Empire Lime Co., 79 Mo.App. 585; Hume v. Eagon, 73 Mo. 271; Turner v. Chillicothe, etc., Co., 51 Mo. 501; Savings Ass'n v. Morrison, 48 Mo. 273; Express Co. v. Rawson, 106 Ind. 215. The error in instruction 6 was not cured by the giving of instruction 1 for plaintiffs. Imp. Co. v. Ritchie, 143 Mo. 612; State v. Bacon, 147 Mo. 286; State v. McNally, 87 Mo. 658.
Botsford, Deatherage & Young and Rusk & String-fellow for respondent.
(1) The trial court should have given respondent's peremptory instruction to the jury to return a verdict for the defendant. (2) The most that could be said in behalf of the appellants on the testimony is, that it leaves the question in doubt whether the defendant's cattle were from Skiddy ranch or from the Pierce pasture; but if the evidence leaves the question in doubt, then the plaintiffs are not entitled to recover. Smart v. Kansas City, 91 Mo.App. 586. (3) Gillett had no authority to make the mortgage under which plaintiffs claim, dated August 2, 1898, to Elmore & Cooper. Appellants' brief cites the case of Grant v. Beard, 50 N.H. 129, in support of their contention in favor of the application of the doctrine of ratification. In that case, the New Hampshire Supreme court, in accord with the doctrine which universally prevails in the American courts, held that the principal could not be held to have ratified a transaction on the part of his agent unless he did so with full knowledge of all the facts. The same doctrine is recognized in the case of United States Express Co. v. Rossen, 106 Ind. 215, which is also cited by appellants' counsel In this connection, we call the attention of the court to the fact that the local citation on page 286, in State v. Bacon, 147 Mo. 160, which is cited by appellants' counsel, is a part of the dissenting opinion in that case, of one of the judges of the Supreme Court, and is not a part of the opinion of the court. (4) The adjudication of this court in the case of New England National Bank v. Northwestern National Bank, 171 Mo. 307, is an authority in point that the mortgage in this case by Gillett to Elmore & Cooper is null and void. (5) Complaint is made that defendant's sixth instruction is in conflict with appellants' first instruction, also given by the court. We submit that appellants' first instruction was erroneous and defendant's sixth instruction was proper. If this was so, error cannot be assigned by appellants to the giving of defendant's sixth instruction.
This is an action for the conversion of one hundred and sixty-two head of cattle of the alleged value of $ 6,000. The action was begun on the 9th of August, 1899. There was a verdict and judgment for the defendant, and the plaintiffs appealed.
THE ISSUES.
The petition is in two counts, arising out of the fact that the plaintiff, Louis Schmidt, owns one note for $ 6,000, and the plaintiff, D. A. McPherson, owns the other note for $ 6,000, both of which were secured by a chattel mortgage on the cattle, alleged to have been converted by the defendant. The answer is a general denial, coupled with a plea that two separate and distinct causes of action are united in the petition. The reply is a general denial.
The case made is this:
In the spring of 1898, Joseph W. Gillett, was the owner of one thousand head of cattle, branded S-T (called S bar T) which were on a ranch in Dickinson county, Kansas, known as the Skiddy Ranch. He moved four hundred head of the cattle to the Pierce Pasture, located about eleven miles northeast of Alta Vista, which pasture was partly in Geary County, and partly in Waubaunsee County.
In May, or the early part of June, 1898, he sold three hundred of the cattle he had so placed in the Pierce Pasture to a third party, who shipped the same to Missouri and sold them. The said three hundred do not figure in this case.
Immediately thereafter, he caused three hundred of the cattle he had left on the Skiddy Ranch to be placed in the Pierce Pasture, to take the place of the three hundred so sold, and to make the number in the Pierce Pasture aggregate four hundred.
In the month of June, 1898, Grant G. Gillett, a brother of Joseph Gillett, arranged with Joseph to purchase the four hundred head of cattle in Pierce Pasture, and the remaining cattle on the Skiddy Ranch. When the transaction was closed it developed that Grant G. Gillett was acting for Charles R. Hollinger and not for himself. In order to pay for the cattle, Hollinger executed a mortgage on the cattle in the Pierce Pasture to the J. C. Bohart Commission Company, of St. Joseph, and with the proceeds of that loan he, through Grant Gillett, paid Joseph Gillett for said four hundred head in the Pierce Pasture, and what remained on the Skiddy Ranch.
Shortly thereafter, it was agreed between Grant G. Gillett and Hollinger, that Grant G. Gillett should dispose of the cattle so as to secure to Hollinger a profit of two dollars per head.
On the 20th of August, 1898, Grant G. Gillett executed a mortgage on the four hundred head of cattle in the Pierce Pasture, to Elmore & Cooper, of Kansas City, Kansas, to secure two promissory notes of $ 6,000 each, made by Grant G. Gillett to Elmore & Cooper, due one hundred and fifty days after date; the cattle to remain in the possession of the mortgagor until condition broken. The mortgage was recorded in Dickinson county, Kansas, the residence of the mortgagor, as required by the statutes of Kansas. With the proceeds of that loan, Grant G. Gillett paid off the mortgage that Hollinger had executed to the J. C. Bohart Commission Company, and returned the notes and mortgage to Hollinger, and also paid Hollinger the two dollars a head profit he had agreed to give him.
Elmore & Cooper sold one of the $ 6,000 notes to the First National Bank of Deadwood, South Dakota, and thereafter, on January 18, 1899, said First National Bank sold said note to the plaintiff, D. A. McPherson, which was before the maturity thereof. Elmore & Cooper sold the other $ 6,000 note to the Franklin Bank in St. Louis, and thereafter, on the 10th of January, 1899, that bank sold it to the plaintiff, Louis Schmidt.
According to the plaintiff's version, on the 25th of September, 1898, Joseph Gillett gave an order on Ben Pierce, the owner of the Pierce Pasture, to deliver the four hundred head of cattle in that pasture to James Davis, and Grant G. Gillett indorsed that order. On Sunday, September 25, 1898, Davis went to Alma, which was near the Pierce Pasture, and the next day he proceeded to the Pierce Pasture, and stayed there on Monday night, September 26th. On Tuesday, September 27th, Pierce delivered to Davis the four hundred head of cattle that were in the Pierce Pasture, and Davis, with his assistants, drove them to Alta Vista, where the cattle were loaded into cars on the Rock Island railroad, and Davis started with them, going as far as Herrington. There Grant G. Gillett met the train and took the cattle by a branch road to Woodbine, Davis going in another direction for other cattle. The cattle reached Woodbine early on the morning of Wednesday, September 28th, and were there unloaded. On the evening of the same day, Grant G. Gillett took three hundred and sixty-two head of the same cattle to Woodbine, loaded them on cars, and shipped them to St. Joseph, consigning three hundred and one head to the J. C. Bohart Commission company, and sixty-one head to Thomas Trowers Sons; Davis accompanying the cattle, and reaching St. Joseph on the morning of September 29th.
On Sunday, September 25, 1898, Grant G. Gillett...
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