Tandy v. Elmore-Cooper Live Stock Commission Co.
| Decision Date | 08 May 1905 |
| Citation | 87 S.W. 614,113 Mo.App. 409 |
| Parties | A. H. TANDY, Respondent, v. ELMORE-COOPER LIVE STOCK COMMISSION CO., Appellant |
| Court | Kansas Court of Appeals |
November 28, 1904;
Rehearing Denied 113 Mo.App. 409 at 422.
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
Judgment reversed and cause remanded.
Haff & Michaels and L. W. McCandless for appellant.
(1) The note and guaranty in said suit are void, because they were extorted by the plaintiff by means of a duress of goods. (2) The common law was in force in Oklahoma at the time of the execution of the note and guaranty in suit. Statutes of Oklahoma (1893), sec. 3874. And an agister's lien did not exist at the common law. Stone v. Kelley, 59 Mo.App 214, 218; Pickett v. McCord 62 Mo.App. 467, 473; 2 A. and E. Encyc., Law (2 Ed), p. 12. (3) Even in those jurisdictions where the law allows an agister to have a lien on the animals which he keeps, as a security for his charges for feed and care, the agister's lien is subordinate to the lien of an antecedent chattel mortgage affecting the animals. Stone v. Kelley, 59 Mo.App. 214, 218, 221; Pickett v. McCord, 62 Mo.App. 467, 473; Lazarus v. Moran, 64 Mo.App. 239, 241; Miller v Crabbe, 66 Mo.App. 660, 662; Harding v. Kelso, 91 Mo.App. 607, 610, 612. (4) A promise, by one entitled to the possession of personal property given to induce a surrender of the property by one unjustifiably withholding it, is extorted by duress of goods and is void. Claflin v. McDonough, 33 Mo. 412, 415; Fout v. Giraldin, 64 Mo.App. 165, 169; Wilkerson v. Hood, 65 Mo.App. 491, 494; Dustin v. Farrelly, 81 Mo.App. 380, 384; Flinn v. Bldg. Ass'n, 93 Mo.App. 444, 448. (5) All contracts requiring, or tending to encourage, or arising out of, or connected with, the performance of an act forbidden by the terms of a statute, which is designed to prevent altogether, and not merely to penalize for revenue, the doing of the act, are void and unenforceable. Boynton v. Curle, 4 Mo. 599; Downing v. Ringer, 7 Mo. 585, 586; Hayden v. Little, 35 Mo. 418, 422; Bank v. Young, 37 Mo. 398, 406; Peltz v. Long, 40 Mo. 532, 538; Carson v. Hunter, 46 Mo. 467, 471; Porter v. Jones, 52 Mo. 399, 403; Sumner v. Summers, 54 Mo. 340, 346; Gwinn v. Simes 61 Mo. 335, 339; Ins. Co. v. Smith, 73 Mo. 368, 370; Buckingham v. Fitch, 18 Mo.App. 91, 99; Tyler v. Larimore, 19 Mo.App. 445, 454; Parsons v. Randolph, 21 Mo.App. 353, 359; Bick v. Seal, 45 Mo.App. 475, 479; Sprague v. Rooney, 104 Mo. 349, 358; Friend v. Porter, 50 Mo.App. 89, 92; Haggerty v. Mfg. Co., 143 Mo. 238, 246; Swing v. Cider & Vinegar Co., 77 Mo.App. 391, 394; Ehrhardt v. Robertson Bros., 78 Mo.App. 404, 408; Board of Trade v. Brady, 78 Mo.App. 585, 592; Woolfolk v. Duncan, 80 Mo.App. 421, 427; St. Louis Fair Ass'n v. Carmody, 151 Mo. 566, 573. (6) And a guarantor of an illegal contract may show the illegality of the principal agreement, in defense of a suit to charge him on his contract of guaranty. Sumner v. Summers, 54 Mo. 340; Heman v. Francisco, 12 Mo.App. 559; Wilkerson v. Hood, 65 Mo.App. 491; Kansas City v. O'Connor, 82 Mo.App. 655. (7) The statutes of the United States declare unlawul, make it a misdemeanor to erect or maintain, and provide for the summary destruction of the fence inclosing more than 160 acres of the public domain. 23 U. S. Stats. at Large, p. 321; 1 Supp. R. S. U. S. (2 Ed.), p. 477; Camfield v. United States, 59 F. 562; s. c., 66 Fed. (VIII. C. C. A.) 101; s. c., 167 U.S. 518, 525. (8) The courts of the State of Missouri are bound to, and will, give to the statutes of the United States the same recognition, force, and effect, accorded to the enactments of the Missouri legislature. Constitution of the United States, Art. VI; Peltz v. Long, 40 Mo. 532, 540; Carson v. Hunter, 46 Mo. 467, 471; Claflin v. Torlina, 56 Mo. 369, 371. (9) A promise to pay for keeping and caring for cattle is an unlawful promise, if the cattle are kept and cared for within a fence inclosing more than 160 acres of the public domain. Garst v. Love, 6 Okla. 46; Brown v. Finance Co., 31 F. 516, 519-520; Ruhe v. Buck, 124 Mo. 178, 183; Clothing Co. v. Sharpe, 83 Mo.App. 385, 391; Thompson v. Insurance Co., 169 Mo. 12, 29.
T. A. Witten for respondent.
(1) We shall not discuss the legal questions involved in this point because the whole matter will be determined upon the facts. There was no duress. (2) We do not deem it necessary to discuss the issue raised in defendant's second point as to the legality of the consideration of the note or to review the many authorities there cited, because the note in question was given as the result of a compromise between plaintiff and Hudson in the adjustment of accounts amounting as claimed by plaintiff, to $ 2,100 and to a less amount as claimed by Hudson. As a result of this compromise the note in question for $ 900 was given and accepted in full settlement and satisfaction between the parties after a full discussion of all doubtful matters. Mullanphy v. Riley, 10 Mo. 489; Bailey v. Chouquette, 18 Mo. 220; Livingston v. Dugan, 20 Mo. 102; Rinehart v. Bills, 82 Mo. 534; Hill v. Coal & M. Co. 124 Mo. 153. Such a compromise is good even though it should turn out afterwards that one of the parties had no right in law. Bailey v. Chouquette, 18 Mo. 220. (3) The suit is upon a contract of guaranty and not upon the note. That plaintiff's agreement to grant Hudson an extension of time was a good consideration for the contract of guaranty by defendants, is no longer open to discussion in this state. Filley v. McHenry, 71 Mo. 417; Deer v. Marsden, 88 Mo. 512; Loewin v. Forsee, 137 Mo. 43; Crawford v. Spencer, 92 Mo. 509; Maddox v. Duncan, 143 Mo. 618; Edwards on Bills and Notes sec. 383; Tiedeman on Com. Paper. sec. 256 and cases there cited.
The facts out of which the action arose may be summarized in about this way: The plaintiff was in possession of a pasture in Woodward county, Oklahoma, containing about 240 sections of land which he had inclosed with a barbed wire fence. The title to all this land except about two-ninths was in the United States--it being part of the public domain. In 1899 one Hudson, who was the owner of about two thousand head of cattle subject to a mortgage to the defendant, entered into a contract with plaintiff under which Hudson turned over to plaintiff the cattle to be by the latter kept in his pasture under the contract until about the 14th day of November, 1900. It seems that about this date defendant, the mortgagee, desired to take possession of the cattle under it mortgage but to this plaintiff objected unless his impoundage or pasturage charges were first paid. It appears that he claimed as due him on this account some $ 2,100. Included in this claim was a charge for feed furnished for the cattle while they were in the State of Texas. This account was disputed by defendant if not by Hudson. In view of these differences the defendant, plaintiff and Hudson agreed that a Mr. Mos should arbitrate the differences just referred to. Accordingly, as a common law arbitrator Mos heard and determined all the matters so in difference between them. The arbitrator cut down the plaintiff's claim to $ 900. The item therein for pasturage was eliminated, leaving only those for feed furnished by one Coombs and the wages which plaintiff had paid the cowboys for their services in keeping the cattle in the pasture. Hudson was utterly insolvent and after the amount he should pay plaintiff had been determined it was suggested by the arbitrator that Hudson give plaintiff his note for it; but to this plaintiff objected saying, "I cannot get a thing out of Nick Hudson: he has not got 15 cents." The arbitrator said, Accordingly, they went to see Mr. Nations, who said: Plaintiff agreed to this and Mr. Nations, as secretary and treasurer of defendant company, wrote its name across the back of the note, after which it was delivered to the plaintiff.
The plaintiff himself testified that the defendant denied that it owed the pasture bill and insisted that it was a debt of Hudson's. He further testified that he refused to allow the cattle to be moved from the pasture until his claim was settled and until he got the note.
The defendant by its answer pleaded amongst other defenses that, "the only pasturage and feed furnished the said cattle of the said Hudson by the plaintiff for which the plaintiff claimed the said Hudson was so indebted to him as aforesaid, and to secure payment for which the aforesaid note executed by Hudson on the back whereof the defendant's name was written, was given, was growing on the public lands of the United States Government in the Territory of Oklahoma; that plaintiff had no claim or color of title to, and no right to the exclusive possession of the said public lands which the defendant's cattle had depastured; that the plaintiff had wrongfully and unlawfully fenced, inclosed, and exclusively occupied and controlled the said public lands against the statute of the United States of America in such cases made and provided, to-wit: 'An Act to Prevent Unlawful Occupancy of Public Lands,' Chapter 149, U.S. Statutes at Large, Vol. XXIII, enacted February 25, 1885." And that by reason of the premises the said note executed by the said Hudson, on the back of which defendant's name appears, was given for an illegal and void consideration.
The answer further pleaded that the defendant as such mortgagee together with the mortgagor, the...
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