Vehicle Supply Company v. Mcinturff

• Decision Date: 01 November 1915
• Docket Number: 201
• Citation: 179 S.W. 999,120 Ark. 487
• Parties: VEHICLE SUPPLY COMPANY v. MCINTURFF
• Court: Arkansas Supreme Court

179 S.W. 999

120 Ark. 487

VEHICLE SUPPLY COMPANY v. MCINTURFF

No. 201

Supreme Court of Arkansas

November 1, 1915

Appeal from Chicot Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

B. F Merritt, for appellants.

The rule of law where a chattel mortgage is acknowledged and recorded in accordance with the laws of the State where the property is located, and is removed by the mortgagor to another State, the mortgagee may enforce his mortgage in the latter State against third parties who may have acquired rights in the property, applies only where the property was removed without the consent of the mortgagee. 31 Ark. 32; 73 Ark. 16.

J. C Gillison, for appellee.

There is no proof that appellee consented to the removal of the property beyond its control, or that it ever was beyond its control. On the contrary the proof is that McInturff removed the property only upon condition that the drafts made up by him be paid by the party taking possession of the shipments. The question of consent is not material unless made so by statute. 104 F. 449.

This is not a suit for recovery of property, but for conversion. Appellee could recover for conversion the full value of the property, and account to McInturff for the surplus, if any the same as if the property had been sold under the mortgage. McInturff, also, might have recovered for the full value of the property, since appellants could not have taken possession of the property and applied it to its own use or the payment of the debt due it without his consent, or some process of law. 29 Ark. 365; 93 Ark. 521.

OPINION

HART, J.

On the 8th day of January, 1915, S. J. McInturff and the Chicot Bank and Trust Co., instituted an action against the Vehicle Supply Company, a partnership composed of M. S. and C. C. Carter, doing a vehicle supply business in the city of Cairo, Illinois, and against the St. Louis, Iron Mountain & Southern Ry. Co., for the recovery of $ 1,331.26 alleged to be the value of three car loads of axles wrongfully delivered by the railway company to its co-defendant and converted by it to its own use. One of the partners came to Chicot county, and service was had upon him there. The defendants answered.

The facts are as follows: S. J. McInturff was in the employment of the Vehicle Supply Company in connection with the business at Cairo, Illinois. He found some timber near Lake Village, Arkansas, out of which he thought he could make some money, and the Vehicle Supply Company desiring the lumber, agreed to lend him one thousand dollars on which to operate. He gave the Vechicle Supply Company a mortgage on some land in Oklahoma as security and also agreed to pay the firm out of the proceeds of lumber shipped to it. He established a saw mill at Lake Village, Arkansas, and on the third day of June, 1914, executed a mortgage to the Chicot Bank and Trust Company on all the manufactured lumber in his mill yard at Lake Village, Arkansas, to secure the sum of $ 650 and future advances. In September, 1914, McInturff shipped to himself at Cairo, Illinois, three car loads of axels of the value of $ 1,331.26 and gave the Chicot Bank and Trust Company a draft for the proceeds of the cars of lumber and attached it to the bills of lading. The bills of lading with the draft attached were delivered to the Chicot Bank and Trust Company and by it forwarded to the bank at Cairo, Illinois, with directions to deliver the bills of lading to McInturff or order upon the full payment of the draft. The railroad company delivered the three cars of axles to the Vehicle Supply Company and the members who composed that firm applied the proceeds to the payment of the debt due the firm by McInturff and refused to account to the Chicot Bank and Trust Company for the proceeds.

The railroad agent at Lake Village testified that he had a message from the railroad agent at Cairo, Illinois, stating that the cars were on hand and asking for a disposition of the axles; that he called up McInturff and asked for a disposition of the axles and that McInturff told him that the Vehicle Supply Company knew that the cars were there and would take them up; and that he then told McInturff that he would wire the agent at Cairo to notify the Vehicle Supply Company and that McInturff replied that that would be all right.

The agent of the railroad company at Cairo, Illinois, testified that the bills of lading for the cars in question were what the Interstate Commerce Commission approved as being a straight bill of lading and that they are not negotiable documents; and that there was a form prepared and approved by the commission called an uniform order bill of lading which was for the purpose of enabling...