The First National Bank and Trust Company v. Morganroth
| Decision Date | 03 July 1931 |
| Docket Number | 29,995 |
| Citation | 300 P. 1061,133 Kan. 474 |
| Parties | THE FIRST NATIONAL BANK AND TRUST COMPANY, of Oklahoma City, Okla., Appellant, v. A. C. MORGANROTH, THOMAS BLACK, ERNEST STROMER, F. W. MUCK, ORVILLE GEORGE, JAMES E. GEORGE and CARL BOLTON, Appellees |
| Court | Kansas Supreme Court |
Decided July, 1931.
Appeal from Osage district court; CAREY E. CARROLL, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
CHATTEL MORTGAGES--Description and Identity of Property--Questions of Law and Fact. The question of the identity of cattle replevined with those described in a chattel mortgage is one of fact for the jury, and, if fairly submitted, their verdict is conclusive.
A. K Stavely, of Lyndon, W. F. Wilson, W. F. Wilson, Jr., and R. E. Owens, all of Oklahoma City, Okla., for the appellant.
J. T. Pringle, of Burlingame, A. O. Justice, of Osage City, and J. M. Fisher, of Kansas City, Mo., for the appellees.
This is an action in replevin, in which six suits were consolidated and tried as one case. The defendants prevailed, and plaintiff appeals.
The appellees, who are Osage county farmers, purchased in the aggregate 502 head of cattle from Omer Power, which were, at the time of the purchase, in a pasture on the Moore ranch in Oklahoma. The principal question in the case is whether Power acquired a good title to the cattle in question from Jesse C. Moore.
For many years prior to 1928 Jesse C. Moore owned and operated a cattle ranch near Sulphur, Okla. The ranch consisted of about 15,000 acres of land, which was used as a pasture. Some of the pastures were in Pontotoc county, others in Johnston county, and still others in Murray county. Pontotoc county on the east and Murray county on the west had a common boundary north of Johnston county, which was bounded by Pontotoc county on the north and Murray county on the west.
Moore was an experienced ranchman and, before the crash in his fortunes which occurred shortly before this litigation, his borrowing line of credit frequently ran above $ 250,000.
It was Moore's practice during the fall of each year to purchase cattle in Texas, Arkansas and other places and ship them to his ranch. In the fall of 1927 he bought in west Texas, and shipped to his ranch, about 600 white-faced cows and about 1,600 white-faced steer calves, which were on the ranch in the summer of 1928.
In the summer of 1928 Moore employed R. C. Ridley, an experienced cattle man, to purchase for him in Texas between 2,000 and 3,000 head of cattle. The cattle so purchased were shipped to the ranch between the 13th and 23d of October, 1928. There is a conflict in the testimony as to the number of cattle that were taken to the ranch. One witness estimates 1,500, while another says 2,800. The cattle were unloaded at Scullin, a station near the ranch, in Murray county, and from there they were taken to the ranch headquarters, dehorned, branded and then distributed to the various pastures. The length of time the cattle remained in each pasture is not definitely established, and the evidence is indefinite as to the number of cattle that were on the ranch.
About this time Moore applied to the appellants for a loan with which to pay for the cattle as they were delivered. The application was at first rejected and on October 30, 1929, he succeeded in procuring a loan from the Stock Yards Loan Company, of Kansas City, in the amount of $ 62,817.50, and to secure the payment thereof he executed a chattel mortgage, which was filed in Johnston county November 5, 1928, upon certain cattle described as follows:
"Fifteen hundred ten (1,510) head of Hereford cattle, more particularly described as:
1,424 hd. coming 1 yr. old extra high-grade steers.
86 hd. coming 1 yr. old extra high-grade heifers.
On November 14, 1928, Moore, who was then indebted to the appellants in the sum of $ 40,000, which amount he represented had been used in the purchase of the cattle shipped from Texas, executed a chattel mortgage to secure the payment of said indebtedness, which was filed in Pontotoc county, on November 15, 1928, upon certain cattle described as follows:
"Now located on the Jesse C. Moore ranch, 3 miles southeast of Hickory, Pontotoc county, Oklahoma."
The mortgage was written at appellant's bank and no inspection was made of the cattle until May, 1929, when Mr. Teter, an officer of the bank, visited the ranch and found cattle which appeared to meet the requirements of the mortgage, but Moore represented that the cattle shown to Teter were in Pontotoc county, while in fact they were in Johnston and Murray counties. By September 11, 1929, the indebtedness had increased to $ 52,500 on account of funds advanced by appellant to Moore for feed. Moore, at that time, represented to the appellant that five of the cattle described in the mortgage had died, and that he intended to take 600 head to Carter county and retain 440 head in Pontotoc county. Accordingly, new notes and mortgages were executed on September 11, 1929. To secure the payment of a note in the amount of $ 22,500, a chattel mortgage was executed, which was filed in Pontotoc county September 18, 1929, upon certain cattle described as follows:
To secure the payment of a note in the amount of $ 30,000 a chattel mortgage was executed, which was filed in Carter county, September 13, 1929, upon certain cattle described as follows:
The appellant knew at the time the mortgage was taken on the 600 head of cattle that ...
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