Vanarsdale v. Hax

• Decision Date: 10 April 1901
• Docket Number: 1,417.
• Parties: VANARSDALE et al. v. HAX et al.
• Court: U.S. Court of Appeals — Eighth Circuit

107 F. 878

VANARSDALE et al. v. HAX et al.

No. 1,417.

United States Court of Appeals, Eighth Circuit.

April 10, 1901

On the 15th day of October, 1898, Charles L. Wilson and George Maris executed and delivered to the A. J. Gillespie Commission Company their two promissory notes of that date, one for the sum of $6,000 and one for the sum of $7,366.80, both due six months after date; and to secure the payment of the same executed to the payee of the notes a chattel mortgage of even date therewith on 402 steers, and '200 tons of hay, 1,500 shocks of corn, and sufficient roughness to winter said cattle' were included in the mortgage. The mortgage was duly filed in the office of the register of deeds of the proper county as required by the laws of Kansas. One of the notes afterwards became the property of the plaintiffs Louis W. Hax, Ernest C. Hartwig, and H. A. Smith, as administrators of the estate of Louis Hax, and the other the property of the plaintiff Milton Tootle, as receiver of the Central Savings Bank of St. Joseph, Mo. Subsequently Wilson and Maris, the mortgagors, sold and delivered the mortgaged cattle to the principal defendant, the Elk Grove Land & Cattle Company, and thereupon the plaintiff brought this action of replevin to recover the cattle, as they might well do under the provisions of the mortgage. In addition to a general denial the answer alleges by their agent, Hammond, consented to and authorized their sale to the defendant. The replication denied the allegations of the answer. There was a trial to a jury, and a verdict and judgment for the plaintiffs, and the defendants brought this case here on writ of error.

A. B Jetmore and A. P. Jetmore, for plaintiffs in error.

James M. Johnson, William D. Rusk, and William E. Stringfellow, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District Judge.

CALDWELL Circuit Judge, after stating the case as above, .

The Central Savings Bank purchased the notes from the payee, who indorsed them in blank. Subsequently the Central Savings Bank sold the $6,000 note to Louis Hax, the plaintiffs' intestate, and indorsed and sent both notes to the State Bank of Holton for collection, but the indorsements did not show that they were made for collection. The complaint averred the notes had been indorsed 'in writing' to the plaintiffs. When they were offered in evidence, the defendant objected because the written indorsement on the back of the notes did not appear to be to the plaintiffs, but the indorsement of the payee was in blank, and the indorsement of the Central Savings Bank was special to the State Bank of Holton. Thereupon the court permitted the plaintiffs to amend the complaint by striking out the allegation that the $6,000 note had been transferred to the plaintiffs by 'written indorsement,' and received oral proof that the notes were the property of the plaintiffs, and that the indorsement to the State Bank of Holton was for collection only. The court did not err in allowing the amendment. McDonald v Nebraska, 101 F. 171, 41 C.C.A. 278. But there was a shorter way of meeting the objection. It is well settled that the holder of a bill or note indorsed in blank by the payee may, at the trial, strike out all subsequent indorsements and recover on the instrument as indorsee under the blank indorsement, and may-- though in most jurisdictions it is unnecessary for him to do so-- fill up the blank indorsement to himself at the trial. Emerson v. Cutts, 12 Mass. 78; Crosby v. Wright (Minn.) 73 N.W. 162; Mitchell v. Fuller, 15 Pa. 268; Preston v. Mann, 25 Conn. 127; Wickersham v. Jarvis, 2 Mo.App. 279; Mottram v. Mills, 1 Sandf. 37; Hargous v. Lahens, 3 Sandf. 213; Evans v. Gee, 11 Pet. 80, 84, 9 L.Ed. 639; Eng. Pl. & Prac. tit. 'Negotiable Instruments'; 4 Am....