Wyman v. Herard

• Decision Date: 26 August 1899
• Citation: 59 P. 1009,9 Okla. 35,1899 OK 112
• Parties: W. F. WYMAN v. VIRGILE HERARD
• Court: Oklahoma Supreme Court

1899 OK 112

59 P. 1009

9 Okla. 35

W. F. WYMAN v. VIRGILE HERARD

Supreme Court of Oklahoma

Decided: August 26, 1899

SYLLABUS

¶0 1. ACTION ON CONTRACT--Counter-Claim. The counter-claim of the defendant in this action is one so arising out of the transaction set forth in the petition as the foundation of the plaintiff's claim and is so connected with the subject matter of that action, that it is properly involved in the action for a complete determination thereof and a settlement of the questions involved therein, as between the plaintiff and defendant.

2. SAME--Pleadings-- Jurisdiction--Summons--Waiver. Since the plaintiff sought the jurisdiction of the court below, and since the counter-claim of the defendant arose out of the transaction set forth in the petition and is connected with the subject matter of the action, the counter-claim is properly filed in the cause, and jurisdiction is obtained by the court as against the defendant; and in such case a provision of the Code of Civil Procedure which declares, that "Every other action must be brought in the county in which the defendant, or some one of the defendants reside or may be summoned," is waived by the plaintiff, and does not apply here.

3. SAME--Pleading--Sufficiency. It is not necessary that a counter-claim should be founded in or arise out of the contract set forth in the petition. It is sufficient if it arises out of the transaction set forth in the petition, or is connected with the subject of the action.

4. PLEADING--Petition--Demurrer--Defects Waived, When. The Code or Civil Procedure, sec. 89, provides that "the defendant may demur to the petition only when it appears upon its face, * * Fourth. That there is a defect of parties, plaintiff or defendant; * * Sixth. That the petition does not state facts sufficient to constitute a cause of action." Where affirmative relief is sought by the counter-claim, to which the plaintiff replies, he cannot afterward take advantage of the fact that the counter-claim is insufficient in law, or that there are other parties to the action. The same rules of pleading apply in this respect to the counter-claim as to a petition, and if either the counter-claim or petition be insufficient, or defective for want of parties, the defect must be taken advantage of by demurrer. Otherwise, it is waived.

5. TRUST--Beneficiaries of--Rule. The rule that all beneficiaries of the trust should be before the court, is one which has been established for the protection of the trustee, and in order to avoid the repeated vexation of the trustee by a multiplicity of suits; and if the trustee waives the protection of this rule, he may dispense with other persons in a case like the present, in which suit is brought by the trustee against one of the beneficiaries of the trust, and in which the defendant's rights may be protected, and it is apparent to the court that no injury or injustice will result thereby to other beneficiaries of the trust.

6. PROMISSORY NOTES-- Mortgage Liens--Assignments of--Priority. In a case like the present, in which the promissory notes were given as evidence of indebtedness for loans of money advanced, and trust mortgages were given upon cattle to secure the payment thereof, and it was provided in the trust mortgages that the cattle should be shipped to a commission company and the proceeds of such sale should be applied to the payment and discharge of all of such notes remaining unpaid, in the order of priority, then the note-holders who took the assignment of the notes and mortgages secured by the trust mortgage, had a right to have the proceeds of the sale of the cattle so applied, and having, of course, notice of the terms of the mortgage, if the proceeds should be misapplied by the commission company, yet the law makes the application of proceeds, in the order of priority, as provided in the trust mortgage, and subsequent lienors are entitled to the application of this principle and to its enforcement, and the mortgages will be discharged according to their priority as to subsequent lienors, upon a sale of sufficient of the property by the commission company to satisfy the notes secured by them, whether the proper credits are entered or not. The money having been received by the commission company, the contract at once appropriates it to the payment of the notes, according to their priority, although, as between mortgagor and mortgagee, the debt may remain and still would be unpaid, if the money, the proceeds arising out of the sale of the mortgaged property, should be actually misapplied by the commission company or agents named in the mortgage.

7. TRIAL--Evidence--Findings Not Disturbed, When. The case was heard in the trial court by the judge, without a jury, much of it being upon oral evidence. Where there is evidence reasonably tending to support the findings, they will not be disturbed here.

8. TRUSTEE--Responsibility for Loss. The trustee will be responsible for any mismanagement of his trust. It is one of the first duties of the trustee after his appointment and acceptance of the trust, to secure possession of the trust property, and to protect it from loss and injury. He must use the same care for the safety of the trust fund and for the interests of the cesti que trust that he uses for his own property and interests, and will be responsible for any loss that may occur to the trust fund.

9. ACTION--Dismissal--Judgment. Dismissals of causes, under the Code of Civil Procedure in the Statutes of 1893, are judgments which neither of the parties, nor the clerk, nor all together, but only the court, can render. A plaintiff without any order or judgment of the trial court, could not, under the provisions of the Code as they then existed, actually dismiss his case, without an order of court.

10. SAME--Right of Defendant to Proceed. When a set- off or counter-claim has been presented, the defendant has the right to proceed to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear.

11. PERSONAL PROPERTY--Mortgage-- Description. Bulls and cows are not covered by a mortgage which undertakes to include only one and two-year-old steers, and where the only testimony which appears touching these items was that they were "bulls and cows," such testimony will not include a finding of fact that they were covered by a mortgage which includes only one and two-year-old steers.

Trimble & Braley and John A. Eaton, for plaintiff in error.

Botsford, Deatherage & Young and Asp, Shartel & Cottingham, for defendant in error.

STATEMENT OF THE CASE.

This action was begun October 2, 1895, in the district court of Kay county, to recover the contract price of certain cattle sold by the plaintiff, plaintiff in error here, to the defendant.

The petition averred that during the month of July, 1893, J.P. Baird and J. P. Ingram, as the firm of Baird & Ingram, executed five separate chattel mortgages to the Fish & Keck Commission company, engaged in the business of buying and selling live stock on commission, at Kansas City, Missouri, with George O. Keck as president, and F. O. Fish as secretary and treasurer; in each of which mortgages security was given upon "one thousand head of steers, two years old," to secure the payment of promissory notes described therein, varying in amounts from $ 2,000 to $ 6,000 and aggregating in the whole the sum of $ 29,000. The cattle were described as located upon the "John Brown ranch, in the Seminole Nation, of the Indian Territory."

It was further averred that on July 29, 1893, the date of the last of these mortgages, for the purpose of creating the plaintiff a trustee for the holders of these several notes, Baird & Ingram executed to the plaintiff, as trustee, for the holders of the notes described in the mortgages referred to, a mortgage upon 5,300 head of cattle situated upon the John Brown ranch, to secure the promissory notes and indebtedness contained therein.

This mortgage provided that the cattle should be kept upon the range until the maturity of these notes, unless sooner marketed with the consent of the trustee, and further provided that the cattle be shipped and consigned for sale to the Fich & Keck company, and the proceeds applied to the payment and discharge of the notes mentioned in the mortgages referred to, in the order of their priority, and that the cattle were to remain in the possession of Baird & Ingram, until default, and with authority to Wyman to take possession of them and sell them for the payment of the notes.

It was further averred that there were 1,100 head of 1-year-old steers upon the ranch, and that on the same day, July 29, 1893, Baird & Ingram executed to the Fish & Keck company their chattel mortgage thereon to secure five notes, one of $ 4,325.58; one of $ 2,629.15; one of $ 3,677.92; one of $ 5,012.30; one of $ 3,865.74, making a total of $ 19,510.72. These several mortgages were endorsed as payable to W. F. Wyman, trustee, or order, by the Fish & Keck company.

Upon the same day Baird & Ingram executed and delivered to the Fish & Keck company a chattel mortgage to secure the same notes as described in the last mentioned mortgage upon the 1,100 head of 1-year-old steers described in the last mortgage, and upon the 5,300 head of 2-year-old steers described in the mortgage of July 29, 1893, in which Wyman was created trustee. This mortgage also stated that it was a second mortgage on said steers, and that the property should be consigned, when marketed, to the Fish & Keck company, at Kansas City, and sold, and the proceeds of the sales should be applied to the payment of all the notes then remaining unpaid. Upon the same day this last named mortgage was assigned by the Fish & Keck company to Wyman, as trustee, for the holders of the notes described in the second mortgage of 5,300 head of 2-year-old steers. The assignment expressly provided that all the interest of the Fish & Keck company was transferred and assigned...