Suckstorf v. Butterfield

• Decision Date: 21 April 1898
• Docket Number: 8003
• Citation: 74 N.W. 1076,54 Neb. 757
• Parties: AUGUST SUCKSTORF ET AL. v. WILLIAM H. BUTTERFIELD
• Court: Nebraska Supreme Court

74 N.W. 1076

54 Neb. 757

AUGUST SUCKSTORF ET AL. v. WILLIAM H. BUTTERFIELD

No. 8003

Supreme Court of Nebraska

April 21, 1898

ERROR from the district court of Pierce county. Tried below before ROBINSON, J. Reversed.

REVERSED AND REMANDED.

Brome Burnett & Jones and Douglas Cones, for plaintiffs in error.

Powers & Hays and W. W. Quivy, contra.

OPINION

IRVINE, C.

Butterfield in October, 1891, sold 160 steers to one Perry, who gave his note for the purchase money, securing the same by chattel mortgage on the cattle. The cattle were bought in Knox county and were by Perry taken to Pierce county, where he contracted with one Tatgo to feed them during the winter. In the following spring Tatgo undertook to sell them in satisfaction of his lien as an agister. They were bought at the sale by one Dixon, and were then driven to the town of Pierce and a portion of them were placed in the pasture of Suckstorf and Cones, in charge of the defendant Reimers. Butterfield had in the meantime appeared on the scene, and was asserting his right under the mortgage. Negotiations then took place which resulted in Butterfield's paying $ 750, Tatgo making some settlement with the purchaser, and agreeing to surrender the cattle to Butterfield. Accordingly an attempt was made to "cut out" from the herd of defendants the Tatgo cattle, and a number corresponding to the number placed there were delivered to Butterfield. Later Butterfield claimed that nineteen of his cattle remained in the defendant's possession, and brought this action in replevin to recover them. At the close of the evidence the court granted a peremptory instruction to find for the plaintiff. During the trial the defendants offered in evidence an affidavit and notice of sale, for the purpose of proving Tatgo's proceedings in enforcing his agister's lien. There was also offered a bill of sale purporting to convey the cattle from Dixon, the purchaser at the sale under the agister's lien, to Butterfield, together with proof that he had requested it to be executed and that it had been sent to him by mail. All this evidence was excluded. We think it should have been admitted. The petition asserted a special ownership in Butterfield by virtue of his chattel mortgage, and pleaded no other title. The evidence excluded tended to prove a sale under the agister's lien, which would have passed the mortgagor's interest at least, conceding that there was no evidence which tended to show that the interest of the mortgagee was subject to the lien of the agister. The further evidence offered tended to show that the mortgagee had purchased such interest as did pass under the sale, and that the title thus vested in him, he...