Waggoner v. Oursler
| Decision Date | 06 October 1894 |
| Citation | 37 P. 973,54 Kan. 141 |
| Parties | WILLIAM A. WAGGONER v. CHARLES A. OURSLER et al |
| Court | Kansas Supreme Court |
Error from Brown District Court.
ACTION by Charles A. Oursler and another, partners as Oursler Bros against William A. Waggoner, for the alleged unlawful conversion of certain cattle. Judgment for plaintiffs defendant brings the case to this court. The facts appear in the opinion.
Justice affirmed.
Hayden & Hayden, for plaintiff in error.
James Falloon, for defendants in error.
OPINION
This was an action to recover for the alleged unlawful conversion of mortgaged property. William R. Baxter, who was indebted to Oursler Bros. about the sum of $ 2,000, executed a chattel mortgage upon some cattle to secure the same. The description in the mortgage was "45 head of three-year-old steers, 59 head of two-year-old steers, now being pastured on the Pottawatomie reserve by said party of the first part." The mortgage was duly filed for record, after which Baxter sold 50 head of the steers to William A. Waggoner, who at once transferred them to another, and the cattle so sold were taken beyond the limits of the state. The remainder of the cattle described in the mortgage, or so many of them as could be found, were afterward sold at the instance of the mortgagees and the proceeds applied upon the mortgage debt. This action was then brought to recover the value of the special ownership of the mortgagees in the 50 head of cattle alleged to have been converted by Waggoner. The answer of Waggoner denied that he had either actual or constructive notice of the mortgage, or that Oursler Bros. had any claim or lien upon the cattle, and further, that Baxter was the duly authorized agent of the mortgagees to dispose of the cattle, and had sold and disposed of them upon their authority, and that subsequent to the sale and delivery they had ratified the same. The trial, which was had with a jury, resulted in a verdict in favor of Oursler Bros. for $ 1,071.88, the jury having found that that was the value of their special interest.
Several errors are alleged, but the principal controversy arises upon the description in the mortgage. It is urged that the description is too general and indefinite to make the mortgage effectual, and that this defect is emphasized by the mingling of the Baxter cattle with about 400 others of a similar kind and description in the same pasture. The claim is that the description is not such as would enable third persons to distinguish and identify the property intended to be included in the mortgage, and that therefore it is invalid as against one who has purchased in good faith, and without actual notice of the mortgage. It appears that Baxter was pasturing a large number of cattle besides those owned by himself, and that his own, as well as about 400 others which he was pasturing for the season, were branded with the same herd brand. There is testimony to show, however, that those owned by himself were...
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