Sigel-Campion Live Stock Com'n Co. v. Holly
| Decision Date | 04 January 1909 |
| Parties | SIGEL-CAMPION LIVE STOCK COMMISSION CO. v. HOLLY. |
| Court | Colorado Supreme Court |
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 226 P. 868
Rehearing Denied April 5, 1909.
Appeal from District Court, City and County of Denver; Samuel L Carpenter, Judge.
Action by J. S. Holly against the Sigel-Campion Live Stock Commission Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Goudy & Twitchell and C. H. Redmond, for appellant.
J Warner Mills, for appellee.
J. S Holly owned cattle branded '7-1.' He sold to H. H. Mills 86 head of them, 30 steers and 56 cows. The cattle were not paid for at the time of sale, and Mills gave his note to Holly for the purchase price, and secured it by a chattel mortgage thereon. The mortgage provided that, if the mortgagor removed the cattle from the county or sold or attempted to sell them without the written consent of the mortgagee, the latter might take immediate possession of the same. While the cattle were in possession of Mills, the mortgagor, in Larimer county, the indebtedness being unpaid, the complaint alleges that he, without consent, either in writing or otherwise, of the mortgagee Holly, on the 26th of January, 1903, wrongfully removed and shipped to defendant in the city and county of Denver 57 head of the cattle included in the mortgage, which defendant received and sold, the proceeds of which were converted to its own use, defendant theretofore knowing of the existence of the mortgage, and that it was still a valid lien on the cattle. The complaint asks for damages against defendant company for the value of the cattle converted. A second cause of action is for $88.81 on an account stated. The defenses of the answer material on this review are that defendant company is engaged in the commission business, selling on commission live stock, and for a number of years had in that capacity received and sold cattle for Mills, and whatever cattle claimed by plaintiff it may have received from Mills January 26th were sold by defendant as a commission agent without knowledge of plaintiff's mortgage. One defense is that defendant had no actual knowledge of the mortgage, and as the description of the property therein is insufficient and uncertain, and on its face is void, the record of the mortgage did not constitute constructive notice of its existence. Another defense is that Mills, the mortgagor, at the time alleged in the complaint when the mortgage was executed, was the owner of a hundred or more head of cattle located at the ranch described in the complaint and in the mortgage, all branded with the '7-1' brand, and that it was impossible for parties dealing with Mills to determine from such description what particular cattle were intended to be embraced therein. Another defense is that the mortgagee gave permission to the mortgagor to sell and remove the cattle. Judgment went for plaintiff upon both causes of action, and defendant appealed. It assigns many errors for reversal. Some of the questions may not be presented at another trial, and we shall dispose of the case upon those assignments which we consider important.
1. The case as made by the first cause of action in the complaint is one of trover and conversion. While the Code abolishes the distinction between different forms of action, the complaint for a conversion of property under the Code must now contain all the material allegations which were necessary in an action of trover at common law. 21 Enc. Pl. & Pr. p. 1060. The defendant complains that it is uncertain whether the first cause of action is one in trover or on an implied contract for the proceeds of the sale of the cattle converted. If the complaint is thus defective, defendant did not properly take advantage of it below. Fairly construed, however, this cause of action would, at common law, be an action of trover, and it was so submitted to the jury. In trover the measure of damages is the fair market value of the property converted at the time of the conversion, and in this jurisdiction an additional amount equal to the legal rate of interest upon such value from the time of conversion to the time of trial. O. & G. S. & R. Co. v. Tabor, 13 Colo 41, 59, 21 P. 925, 5 L.R.A. 236, 16 Am.St.Rep. 185. The only evidence of the value of the cattle in question is that of plaintiff and his witnesses.
The verdict is not sustained thereby. The amount of the proceeds of the sale seems to have been adopted by the jury as the measure of plaintiff's damages. This is wrong, but the error might, and probably would, be corrected by reducing the amount of the judgment to correspond to the proof of value, if this was the only error in the record. But other and more serious errors committed by the trial court vitiate the verdict and compel a reversal of the judgment and remanding of the cause.
2. Counsel for both parties in tendering instructions were in accord that it is for the jury to determine whether the cattle alleged to have been converted are part of the cattle described in the mortgage, and whether, under the facts elicited at the trial, the description in the mortgage is, in fact, sufficient to enable third persons dealing with the owner of the cattle to identify them. The description in the mortgage is: 'Thirty steers two and three years old, branded 7-1, 56 cows from two to six years old branded 7-1, located on the John Daly land one mile west of Loveland, Colorado.' The court, for some reason not apparent from the record, told that jury as matter of law that this description was full and sufficient, and that, if from the evidence they found that the mortgage was bona fide it was a good and valid mortgage upon its face as between the parties and as against defendant. Whether as matter of law this description is prima facie good and sufficient is not now important. In view, however, of the uncontradicted evidence, the court, as requested by counsel for both parties, should have submitted to the jury the question whether it was such a description as, aided by inquiries which the mortgage itself indicates, is sufficient to enable third persons to identify the property. Such is the rule and such the test approved in Tabor v. Sampson, 7 Colo. 426, 4 P. 45. See, also, Kelly v. Reid, 57 Miss. 89; Stone-braker v. Ford, 81 Mo. 532. The evidence establishes that at the time the mortgage was given the mortgagor, Mills, had in his possession at the place described in this mortgage as the location of the mortgaged property other cattle branded with the same brand. The mortgagor testifies that he then had at least 64 cows thus branded. Clearly, therefore, no one with this description in the mortgage before him could have identified the cows covered by the mortgage. Indeed, the court seems to have recognized this, for in instruction No. 12 the jury were told that, if they believed from the testimony that at the time of the execution of the mortgage the mortgagor had at the place mentioned in the mortgage more than 56 cows from two to six years old branded '7-1,' the mortgage was so uncertain as to the description of the cows that it would be void in that respect. This instruction is inconsistent with, and repugnant to, instruction No. 5, wherein the court instructed the jury that the chattel mortgage contains a full and sufficient description of the cattle. Under the uncontradicted evidence, the court should not have given instruction No. 5, but should have told the jury, as it properly did in No. 12, that the description as to the cows was void. Ordinarily, when two inconsistent instructions are given, it is impossible to tell which the jury followed. Apparently the jury here were guided by No. 5, the bad one, and ignored No. 12, which is good; for, if they had been guided by the only evidence in the case on that subject, they would have returned a verdict for defendant in accordance with instruction No. 12. In addition to this, there was a total failure of proof as to how many of the 56 head received by defendant were steers and how many were cows. This being so, not only were the cattle not properly identified, but there...
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