National Bank of Commerce v. McDaniel

KANE, J. This was an action upon a promissory note and to foreclose a chattel mortgage upon some cattle, given to secure the payment thereof, commenced by the) plaintiff in error, plaintiff below, against the defendant in error J. S. McDaniel, defendant below. The action as between these parties resulted in a judgment in favor of the plaintiff and the foreclosure of th^ mortgage, as prayed for, which was not appealed from, which closes the case in so far as these parties are concerned. The matter for reviejw concerns! the right of the defendant in error B. G. Hoff to enforce a lien upon the cattle which h^ claims by virtue of sections 175 and 176, Rev. Laws 1910, which read as follows, respectively: “175. Any person employed in feeding, grazing or herding any domestic animals, whether in pasture or otherwise, shall have a li^n on said animals for the amount due for such feeding, grazing or herding. “176. Any person, partnership, firm or corporation in this state, or in any border county of the adjacent states, furnishing or providing to the owner of such domestic animals any corn, feed, forage or hay, for the sustenance of such domestic animals, shall have a lien on said animals for the amount due for such corn, forage, feed and hay.” The court below decided this question in favor of Mr. Hoff, whereupon this proceeding in error was commenced by the bank for the purpose of reviewing the action of the trial court. The facts out of which it is claimed the lien arises may be summarized briefly as follows: Hoff, the defendant in ejrror, who was an experienced cowboy and cattleman by trade or calling, was employed by McDaniel, the owner of the cattle, to take charge of a ranch of about 1,900 acres upon which the cattle were to be herded and cared for, the former to receive wages at th^ rate of $60 per month. The agreement was not specific in defining the scope of Mr. Hoff’s duties in the premises, but as there was no fault found by any of the parties with what he did in relation to the cattle, we will assumcj that what be did was within the implied scope of his general employment to take charge of the ranch and feed and herd the cattle placed thereon. At the time Hoff took charge of the ranch McDaniel was the owner of several head of cattle involved, and subsequently he purchased othejr cattle and placed them with the herd on the ranch. After the cattle were turned over to Hoff he took general charge and care of them, meeting such emergencies as arose in the business, and, providing feed and shelter for the cattle as required. McDaniel, the ownejr, lived in Pontotoc county across the Canadian river, a distance of 23 or 24 miles from the ranch, and did not visit the same more than *7 twice from April, 1913, to January, 1914, during the time Hoff had charge thereof. In the month of August, while Hoff was still in charge, Are broke out on the ranch, and burned up all the grass, and thereafter the cattle were herded by Hoff on open range with the knowledge of McDaniel. The mortgage executed by the plaintiff in error herein was made by McDaniel in Juncj, 1913, several months after Hoff took charge of the herd, and purported to cover all the cattle in his charge. At the time this mortgage was executed Mr. Estill, president of the mortgagee bank, asked Mr. McDaniel if the cattle were in charge of a good man, and Mr. McDaniel told the president that the cattle were and would remain in charge of Mr. Hoff, who was an experienced cattleman and cowboy. During the fall and winter grazing upon the ranch became short, and, Mr. McDaniel making no adequate provision for paying for of procuring feed for the herd elsewhere, Mr. Hoff performed these duties, and during this time, from about October or November, until January, when the cattle wer^ taken by the bank, he had several conversations with the officials of the bank as to ways and means of protecting, caring for, and feeding the cattlej. In January, Mr. McDaniel still neglecting to provide for feeding and caring for the herd, or to meet the obligation of the bank, the cattle Werej taken in replevin by the bank, with the result hereinbefore stated.' Counsel for plaintiff in error present thejir grounds for reversal in some 14 or 15 assignments of error, but in their brief they say: “The underlying principle in support of all these assignments of error is this: That un-def the undisputed evidence in this case the defendant B. G. Hoff was not an agister, but a hired hand, and as such has no lien upon the cattle involved in this action.” They further say: “Possession being the basis of such lien, it necessarily follows that a servant whose custody of property is only the possession of his mastejr cannot claim a lien.” In support of the contention thus stated they cite Boston & Kansas City Cattle Loan Co. v. Dickson, 11 Okla. 680, 69 Pac. 889, and several cases of the same class from other states. As neither of thej sections of the statute construed in the eases relied upon are similar to the sections now under consideration, viz., sections 115 and 176, supra, this case is not rulejd by cases of that class. We think the uneontradict^d evidence shows that Mr. Hoff is entitled to the lien 'he claims under th^ statutes invoked by him. Clearly Mr. Hoff was a person employed in feeding, grazing, and herding domestic animals, within the meaning of section 175, supra, and he was also a. person who furnished or provided to the owner of domestic animals com, feed, forage, or hay for their sustenance under, section 176. In both of these capacities he is entitled to a lien. Undejr the first section the lien is for the amount due him for his personal services in feeding, grazing, and herding the cattl^', and under the second section for the amount due him for providing for the owner of such domestic animals feed, forage, hay, etc. In Lytell v. Bank, 65 Or. 243, 132 Pac. 518, a statute not dissimlar to our section 175, entitled “An act giving herders a lien on animals herded” was under discussion. The court, after a full discussion of the decisions, construing statutes giving liens to ag'istejrs and their class, among them Boston & Kansas City Cattle Loan Co. v. Dickson, supra, held that: “L. O. L. 7484, 7485, declaring that any herder of sheep, or any one to whom they are intrusted for care and attention, under-contract therejfor with their owner, has-thereon a possessory lien for the amount due. on the contract, and may retain possession of them till it is paid, not professing to amend sections 7451, 7452, giving a lien to ‘any person who shall pasture or feejd- any-live stock, or bestow any labor, care or attention o,n the same at the request of the owner,’ but passed by the Legislature nejxt after a decision that they gave a lien to agisters only, and not to servants of the owner, will ha construed as a remedial statute, and, in view of the mischief to be remedied to give a lien to a herder for wages, though he is not strictly in possession of the animals for which he cares, it being intended he may retain custody of theim until his wages are paid.” The lien provided for by our statute is not designated a possessory lien, as in Oregon, nor is it, by the terms of the statutej, dependent upon possession. In these circumstances, we have no doubt that such possession as persons employed in feeding grazing, or herding domestic animals ordinarily hav^ of the herds intrusted to their care by the owner is sufficient to create a lien in their favor under the statute, which is remedial in its nature, and therefore should be construed in favor of the class for whose protection it was enacted. There is some further contention on the part of counsel for plaintiff in error that, even though it be held that the| statute is sufficient to include a hired hand, or that Hoff, was' an agister, it will be found from the authorities that the mortgage lien of the bank takes precedence over the lien of Hoff. *8 The rule in this jurisdiction is stated in Bank v. Wilson, 49 Okla. 370, 153 Pac. 172, as follows: "The lien of a valid recorded chattel mortgage will take preced~nce over the subsequently acquired lien of a person furnishing feed to the owners o~ the animals embraced in said inortgage~, unless such feed was furnished to the owner with the consent of the mortgagee., The lien of a person who furnishes feed to the owner of certain animals with thu knowledge and consent of a Tnort-gagee is superior to the lieu of said mortgage, although furnished after the filing thereof." If Hoff is placed upon a common plane with other lienholdurs, the first in thej order of time to have superiority, ~e find that at the time of the execution of the chattel mortgage to th~ bank the lie~n of Mr. Hoff ~bad been attached to a considerable number of the herd for several months. In these `circumstances, the subseque~nt chattel mortgage of the bank would not have the effect of displacing thu lien of Mr. Hoff which bad previously attached to the part of the herd which had been in his posse~ssion for several months. Moreover, the bank knew that all the cattle were in the charge of Mr. Hoff as a herder, and `there was testimony to the `~ffect that after the grasing had commenced to become short on thu range in the fall, the bank officials told Hoff to go ahead and buy fodder and take care of the cattle and the bank would see him through. This, too, with full knowledge on the part of the bank that Hoff was spending his own money for the purpose of keeping the herd in good condition. Of course, as it turned out, all of this redounded to the benefit of th~ rnortg~-gee, ~cvho, it seems, was the only one who profited by Mr. Hoff's labor and effort to feed and care for the cattle unc1~r very try`ing circumstances; Mr. MãDaniel seeming to have ignored his duty almost entirely toward the mortgagee, as well as toward his em-ployej. Fo~ the reasons stated, the judgment of the court below is affirmed. All the Justices cóhcur.