Ziegler v. Ilfeld

• Decision Date: 04 December 1911
• Citation: 122 P. 56,52 Colo. 275
• Parties: ZIEGLER et al. v. ILFELD.
• Court: Colorado Supreme Court

122 P. 56

52 Colo. 275

ZIEGLER et al. v. ILFELD.

Supreme Court of Colorado

December 4, 1911

Rehearing Denied April 1, 1912.

Error to District Court, Larimer County; Harry P. Gamble, Judge.

Action by Charles Ilfeld against Watson Ziegler and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

See also, 40 Colo. 401, 91 P. 825.

John T Bottom, for plaintiffs in error.

Hodges & Wilson, for defendant in error.

GABBERT J.

Defendant in error, plaintiff below, brought suit against plaintiffs in error, as defendants, to recover the value of lambs which plaintiff claimed to own, and which he alleged the defendants had wrongfully converted to their use. The basis of his claim was that he held a chattel mortgage on the lambs in question given him by Mateo Lujan and wife, in the territory of New Mexico. This case was previously considered in Ilfeld v. Ziegler, 40 Colo. 401, 91 P. 825, on appeal from a verdict and judgment in favor of defendants. In considering that appeal, we held that the trial court erred in permitting the defendants to introduce evidence tending to establish that plaintiff, as mortgagee, had authorized the mortgagors to sell the mortgaged property, for the reason that such defense was not tendered by the answer. The judgment of the trial court was reversed and the cause remanded for a new trial, with leave to the parties to amend their pleadings. Pursuant to the leave thus granted, defendants amended their answer so as to present the issue of authority granted by plaintiff to the mortgagors to sell the mortgaged property and account to him for the proceeds. A retrial with this issue in the case was had, and a verdict and judgment rendered for the plaintiff, which the defendants have brought here for review on error.

For the purposes of the trial, it was admitted that the property was not purchased from Lujan by the defendants, but that they made their purchase from one Serapio Romero. It appears from the evidence that the latter had entered into an arrangement with the defendants, through Watson Ziegler, a member of the defendant firm, to sell and deliver them, at certain railroad points in New Mexico, several thousand lambs at an agreed price of $1.65 a head. Romero appears to have purchased the lambs in question from Lujan, and turned them over to the defendants, who paid Romero the price agreed upon. Plaintiff had a chattel mortgage on this property. The lambs were driven from the Lujan ranch to Clayton. Serapio Romero gave Miguel Romero, on account of the Lujan lambs, his check for $3,500, which was afterwards sent to the plaintiff by Miguel with other checks given him by Serapio, to be sent to plaintiff on account of sheep which he had purchased from other parties, and turned over to the defendants, and upon which the plaintiff also held chattel mortgages. The $3,500 check was dishonored. These transactions occurred in November, 1900. At the trial the manager of the business of plaintiff was asked by counsel for defendants the following questions, to which objections were interposed and sustained: 'Q. I will ask you if some time in the month of November, 1900, you received what purported to be a remittance to be credited upon the note secured by mortgage given by Mateo Lujan and Ambrosia V. Lujan, his wife, under date of December 7, 1899? Q. When you ascertained that property that was mortgaged to Charles Ilfeld had been disposed of, and that that check represented the price or proceeds of mortgaged property that had been sold by Lujan, what steps did you take with reference to that matter, and when, and how? Q. When did you learn that this check had been given as the purchase price of lambs that had been sold that were covered by this mortgage, to which we have referred? Q. Did you present this check to the bank upon which it was drawn, or send it through some other bank? (Referring to the $3,500 check of Serapio Romero.)' The court instructed the jury to the effect that defendants had not introduced any testimony to establish their defense that plaintiff had authorized Lujan to sell the lambs and remit the proceeds of the sales to him. Error is assigned on this instruction, and the ruling of the court in sustaining an objection to the questions above referred to.

From the record it appears that these rulings were based upon the ground that the issue of ratification by plaintiff of the act of the mortgagors in selling was not in the case. Our attention has not been directed to any testimony tending to prove that Lujan, in selling to Romero, professed to act as the agent of plaintiff. In this respect the case is the same as when here before, when we held that where a mortgagor, in selling mortgaged chattels, did not avowedly act as the agent of the mortgagee, but in his own right, as owner, the mortgagee would not be bound thereby on the theory of a ratification of an unauthorized act of his agent.

There was, however, another important question in the case which defendants were entitled to have submitted to the jury, and which the...