Wood River Bank v. Kelley

• Decision Date: 20 May 1890
• Parties: WOOD RIVER BANK v. KELLEY.
• Court: Nebraska Supreme Court

29 Neb. 590

46 N.W. 86

WOOD RIVER BANK

v.KELLEY.

Supreme Court of Nebraska.

May 20, 1890.

Syllabus by the Court.

1. In order to lay a sufficient foundation for the introduction of evidence to contradict the statement of a witness as to a statement alleged or denied by him, it is indispensable that the witness' attention be called to the declaration alleged or denied to have been made, and that the time and place when and where, and the person to whom, such statement should have been made, be cited, all of which must be done with reasonable certainty.

2. Where an agent had in his possession a chattel mortgage on certain cattle, and was, as the agent of the mortgagee, making investigations with a view of foreclosing the mortgage upon certain cattle then being shipped by the mortgagor to other parties, and expressed the opinion that the cattle to be shipped were the same cattle described in the mortgage, and in a subsequent action brought by a third party against the mortgagee for the possession of other cattle claimed by the mortgagee to be the cattle described in said mortgage, held, that such expression of opinion by the agent was not admissible in evidence against his principal.

3. Instructions given and refused examined, and held rightly given and refused.

Error to district court, Hall county; HARRISON, Judge.James H. Woolley and Thummel & Platt, for plaintiff in error.

Thompson Bros. and O. A. Abbott, for defendant in error.

COBB, C. J.

This action was brought in the district court of Hall county by the Wood River Bank against John Kelley, for the possession of 50 head of cattle in which the plaintiff claimed to have a special property by virtue of two chattel mortgages given by the general owner, and exhibited, and in which the property is described as “50 head of two and three year old steer cattle of various colors and brands,” and which was alleged to be of the value of $2,000, wrongfully detained by the defendant, to the damage of the plaintiff in the sum of $50. The defendant answered by a general denial. There was a trial to a jury, which found “that at the commencement of this suit the defendant had a special ownership in the cattle in controversy, and was entitled to the possession thereof, and fixed the value of defendant's interest at $2,056.54, and found the value of the cattle to be $1,937.20, and defendant's damages by reason of the taking to be $50.” The plaintiff's motion for a new trial was overruled, judgment was rendered for the return of the property to the defendant, and, in case a return could not be had, “that he recover of and from the plaintiff the value of his interest therein, as found by the jury, the sum of $1,937.20” and the costs. The cause was brought to this court by petition in error, and upon the following assignments: (1) The court erred in admitting evidence excepted to by plaintiff; (2) in excluding evidence offered by plaintiff; (3) in giving instruction No. 4; (4) in refusing to give instructions Nos. 1 and 2, asked by plaintiff; and (5) in overruling the plaintiff's motion for a new trial.

This controversy is between two holders of mortgage liens upon certain cattle, the general ownership of which was held by one Frank M. Hillebrandt. The first, in point of time, of these mortgages was that of Hillebrandt to the plaintiff, executed July 20, 1886, and recorded July 22, 1886, to secure $4,000, alleged to be due on two promissory notes of even date, upon the following described property: 110 two and three year old steers, a portion branded H on the right hip, about 60 in number; the others of various brands, the same being kept on my home farm,--indorsed upon which mortgage, as introduced in evidence by the plaintiff, is the following release: “For value received I hereby release from the chattel mortgage given to the Wood River Bank by F. M. Hillebrandt, July 20, 1886, to secure notes for $4,000, the following chattels, and none others, to-wit: Eighty acres of corn in the field, and fifty head of two-year-old cattle of various colors and brands. E. C. HOCKENBERGER, Cashier Wood River Bank. Oct. 12, 1886.” “(2) A chattel mortgage of Hillebrandt to Combs, Hanna & Co., recorded August 12, 1886, to secure $2,000 upon the following described property: 60 head of fat cattle, now on feed at my farm in Hall county, Neb., the W. 2/3 of S. W. 1/4 of sec. 28, and S. E. 1/4 and E. 1/2 of S. W. 1/4 of sec. 29, all in Tp. 12, R. 11 W. (3) A chattel mortgage of Hillebrandt to John Kelley, executed October 5, 1886, to secure $2,500 upon the following described property: 50 head of two-year old steers, part of which are branded with the letter H on right hip, now being fed on my farm in Hall county, Neb.; 120 head of hogs, which are all that I now have on said farm,--and it is expressly understood and agreed that, if the above cattle and hogs are sold by me, I am to pay said Kelley fifty cents for each steer sold, and the usual commission on the hogs; and, if not sold by me, they are all to be shipped to said Kelley at the Union Stock-Yards, Chicago, Ills. Recorded October 21, 1886. This mortgage is accompanied by a note executed by F. M. Hillebrandt to John Kelley for $2,500, dated October 5, 1886, due February 1, 1887, indorsed, ‘Received on the within note, $94.80, Jany. 11, 1887.’ (4) A chattel mortgage executed October 22, 1886, by Hillebrandt to the Wood River Bank, to secure $6,000, for three promissory notes dated July 20, 1886, due January 1, 1887,--one of $2,000, due August 19, 1886, signed by Hillebrandt, and payable to the order of the Wood River Bank, upon the following described property: 157 head of two and three year old steer cattle of various colors; a field of 80 acres of corn on sec. 28, Tp. 12, R. 11,--all subject to a mortgage of $2,000 in favor of Combs, Hanna & Co.; one of $2,000, in favor of John Kelley; and one of $1,826.78, in favor of Clay, Forrest & Co., recorded November 13, 1886. (5) A chattel mortgage executed January 11, 1887, by Hillebrandt to John Kelley, for $2,567, on the following described property: ‘Any and all cattle of all kinds now in my feed-yards on my farm, the S. E. 1/4, sec. 29, Tp. 12, R. 11 W., in Hall county, Neb., not including 47 head of range cattle; those mortgaged being 50 of the best cattle now in said yards, after the range cattle are taken out; some of them are two years old, the balance three years old; some branded H on the right hip, and some not branded; but the entire 50 are native cattle, and are now being fed and fattened by said Hillebrandt on his farm. Recorded Jany. 11, 1887, without note on this mortgage.’ ”

It appears from the testimony of Hillebrandt that, after the execution and recording of the mortgage to the Wood River Bank of July 20, 1886, on October 5th following he was still indebted to the bank, and the officers, still holding their mortgage on his cattle, were, to use the words of the witness, “pushing him a little, and rushing him up, and wanted some money;” that the witness told them that he could make arrangements for some money east, if they would release some of his cattle which they consented to do, if witness would give them some of the money; he informed them that he had made application to Kelley to procure from $2,000 to $4,500; that, if Kelley could not let him have the larger sum, he would take $2,500 or $2,000. As nearly as can be gathered from the testimony of the witness, the bank officers inquired what he wanted the $4,500 for; and he replied that he would rather Kelley should have the first mortgage on the Combs-Hanna cattle that he had given; that he wanted to pay that off, and that Kelley had written that he would accommodate him; that he had got $2,500 from Kelley, and had given the note referred to for that loan; that it was secured on cattle and hogs; that the cattle were the same involved in this suit; and that the bank officers released their prior mortgage in pursuance of this agreement on the 80 acres of corn in the field, and the 50 head of two-year-old cattle of various colors and brands; that after giving the mortgage to Kelley securing this note, and the witness thinks about the 1st of November following, but is not certain as to the date, he gave to the Wood River Bank another mortgage, evidently the mortgage No. 3, herein stated, dated October 22, 1886. The defendant here offered in evidence, on the trial, an Exhibit B, which is the mortgage from Hillebrandt to Kelley, hereinbefore referred to, dated October 5, 1886; and the witness stated that that mortgage had never been released, and that the cattle therein described were the same involved in this suit, and that he surrendered them to Kelley on the 26th of January, 1887, on the farm of witness in Hall county. It further appears from the evidence of Hillebrandt that in January, 1887, he signed another note and mortgage to the defendant at the sheriff's office in Grand Island. In answer to the question why that was done, he stated that he went to ship some cattle, about January 11th, and that Watts, who appears from the record to have been an agent of the defendant, and the deputy-sheriff of the county, stopped him from proceeding for the reason that Watts was under the impression that the cattle to be shipped were those that the defendant had a mortgage on, and this was the occasion that the second mortgage to him was given; that Watts requested him to make the mortgage plainer than described in the original, and to make the second mortgage so that Kelley would understand it.

It appears from further evidence that this second note and mortgage were executed with the understanding that they would be sent to the defendant in Chicago, to be accepted in lieu of the first note and mortgage, or, if not so accepted, to be returned to Hillebrandt; that the mortgage was place on record by Thompson, Kelley's attorney, and a copy of it, with the note, was sent to Kelley by mail. Hillebrandt testifies that the...