The Frick Company v. The Western Star Milling Company

• Decision Date: 01 January 1893
• Citation: 32 P. 1103,51 Kan. 370
• Parties: THE FRICK COMPANY v. THE WESTERN STAR MILLING COMPANY
• Court: Kansas Supreme Court

32 P. 1103

51 Kan. 370

THE FRICK COMPANY v. THE WESTERN STAR MILLING COMPANY

Supreme Court of Kansas

January 1, 1893

Error from Saline District Court.

THIS was an action brought by the Frick Company against the Western Star Milling Company for the conversion, in September and October, 1888, of 570 bushels of wheat, valued at $ 500 which the Frick Company claimed under a chattel mortgage dated the 9th of November, 1887, and executed to the Frick Company by Andrew Bachofer. The chattel mortgage embraced the two-thirds interest of 77 acres of growing wheat on the farm of S. P. Rinquest, in the county of Saline, in this state which Bachofer had rented. The mortgage contained the following provision: "The wheat is to be placed in garner, subject to the order of Frick Company, of Waynesboro Pa., and not to be disposed of without their consent, unless the past-due notes are first paid in full." Trial before the court, a jury having been waived. The court made the following findings of fact:

"1. Immediately after the execution of the chattel mortgage described in the plaintiff's petition in the above-entitled action, it was agreed by and between the mortgagor, Andrew Bachofer, and the agent of the mortgagee with whom the sad mortgage was executed for the company, that the mortgagor should sell the wheat described in the mortgage at the place where he could do so at the best advantage, and from the proceeds of such sale he should pay the expenses of harvesting and threshing said wheat, and use what was necessary for the support of his family to the time of such sale.

"2. Said mortgagor harvested said wheat and threshed the same during the month of August, 1888, and put the same in a bin upon the place where the wheat was raised, with the one-third of the crop which belonged to the owner of the land upon which it was raised, said wheat having been raised upon rented land.

"3. On or about the 1st day of August, 1888, the mortgagees sent said mortgage and the notes therein described to Garver &amp Bond, attorneys at law, located in the city of Salina, Saline county, Kansas, for collection.

"4. Upon the day said wheat was threshed, Garver & Bond sent one James Chase to the place where said wheat was so being threshed to look after the same; and said mortgagor then stated to Mr. Chase that he would turn over to the mortgagees said wheat or pay the debt thereby secured in a short time.

"5. Within a few days after said wheat was threshed, the mortgagor called at the office of Garver & Bond, and Mr. Garver then stated to him that he thought said wheat had better be stored for a while, for the reason that the price, he thought, would be greater than it was at that time; but said mortgagor did not understand the statement so made to him.

"6. During the months of September and October, 1888, the said mortgagor sold to said defendant 434 bushels of wheat, then of the value of $ 384.

"7. The wheat so purchased by defendant was immediately mixed with a large quantity of other wheat in its elevator, and soon after such sale said plaintiff demanded of defendant said wheat or the value thereof, and defendant refused to pay for said wheat, or to turn the same over to plaintiff."

And thereon the court made the following conclusions of law:

"1. That the plaintiff is not entitled to recover of defendant the value of the wheat so purchased by it.

"2. That the defendant should recover of and from the plaintiff its costs expended in this action."

Judgment was entered for the milling company against the Frick Company. It excepted, and brings the case here.

Garver & Bond, for plaintiff in error:

The court should have sustained the objection made to the introduction of testimony as to conversations which took place at the time the mortgage was executed, because it tended to contradict the written agreement at that time entered into by the parties. This testimony was fully and specifically objected to by plaintiff, on the ground that it was attempting by oral evidence to contradict the written instrument. That such testimony was inadmissible, for the reasons stated in the objection made to its introduction, we think is beyond any question or controversy in this court. Miller v. Edgerton, 38 Kan. 36; Topeka Mfg. Co. v. Hale, 39 id. 23; Schoen v. Sunderland, 39 id. 758; Windmill Co. v. Piercy, 41 id. 763; Smith v. Deere, 48 id. 416.

No question can be made that this mortgage held the wheat after it was threshed and placed in the granary, and that the mortgagee could follow it into the hands of a purchaser. Sims v. Mead, 29 Kan. 124; Muse v. Lehman, 30 id. 514.

The receipt of the wheat and the mixing of it with a large quantity of other wheat in its elevator was a conversion by the defendant, and the plaintiff was entitled to recover its value. Shepard v. Pratt, 16 Kan. 209; Sims v. Mead, 29 id. 129; 16 id. 43; 13 N.H. 494; 9 Allen, 171.

The conditions of the mortgage not being complied with, if the lien had not been waived or released by the mortgagee, the wheat passed into the hands of the milling company subject to such lien, and the mortgagee could maintain this action for the value of the wheat so received and converted. Brown v. Campbell, 44 Kan. 237; Howard v. Burns, 44 id. 543.

C. A. Hiller, and Hutchinson & Banks, for defendant in error:

Oral evidence is admissible to prove a new and distinct agreement to change a written agreement. Greenl. Ev., 12th ed., § 303; Abbott's Trial Ev., p. 370; Piatt's Adm'r v. United States, 22 Wall. 506, and cases cited; Shaffer v. McKanna, 24 Kan. 22; Armel v. Layton, 29 id. 576; 125 Pa. 268; 147 Mass. 46; 45 Wis. 36.

A general objection to evidence is insufficient. Humphrey v. Collins, 23 Kan. 549; K. P. Rly. Co. v. Pointer, 9 id. 620; Beebe v. Bull, 12 Wend. 504.

Exceptions to testimony en masse are unavailing. If a party excepts to the entire testimony of a witness, without specifying the portions that are inadmissible, the exceptions are not reviewable in this court. Beebe v. Bull, 12 Wend. 504; Penn. Aid Society v. Corlay, 11 Ins. Law J. 493; Walker v. Armstrong, 2 Kan. 198; K. P. Rly. Co. v. Pointer, 9 id. 620; Gano v. Wells, 36 id. 688; Smythe v. Parsons, 37 id. 83.

The same rule should obtain to general objections and exceptions to evidence as to general exceptions to instructions. Fullenwider v. Ewing, 25 Kan. 69; Myer v. Moon, 45 id. 580.

It is incumbent upon the plaintiff to prove a demand and refusal in order to sustain this action against the defendant. Cooley, Torts, pp. 452-454; Farrer v. Rollins, 37 Vt. 295; Neill, Torts, 592.

There can be no conversion of property while in possession of a party who came rightfully by it, without the exercise of such a claim of right or dominion over it as assumes a right to hold the possession, so as to deprive the other party of it, for in such a case it is the unlawful detention that constitutes the conversion. Fernald v. Chase, 37 Me. 289; Boobier v. Boobier, 39 id. 406; Shoemaker v. Simpson, 16 Kan. 43. In the case at bar no conversion was shown to exist in law, and none was shown by the evidence.

The mixture of this wheat with the wheat of the defendant, although not capable of an actual separation, does not militate against this position. Piazzek v. White, 23 Kan. 621; Muse v. Lehman, 30 id. 514-518; Ryder v. Hathaway, 38 Mass. 298, or 21 Pick. 298.

Where a parol license is given, on the faith of which money is expended upon it by the licensee, the licensor will be estopped from revoking the license. Lane v. Miller, 27 Ind 265; Ogle v. Ogle, 55 id. 130; Buchanan v. L. C. & S.W. Rld. Co., 71 id. 265; Nowlan v....