Kollock v. J. P. Emmert & Co.

Ellison, J. This action is for the conversion of a carload of hogs. The circuit court sustained a demurrer to plaintiff’s evidence, and he appeals. The dispute between these parties is whether the transaction between plaintiff and defendants’ vendor amounted to a conditional sale or a mortgage. If a mortgage it was void as to defendants, it not being recorded. It may be stated generally that one Weidlein shipped a lot of hogs to defendants as his own and in his own name, and that plaintiff claimed to be the true owner of the hogs. Plaintiff’s claim is either that Weidlein bought the hogs and sold them to him or that he bought the hogs for him, and that plaintiff then sold them to Weidlein with the understanding and agreement that they were to remain plaintiff’s property until paid for, such sales being permitted by the laws of Kansas. But the evidence, taken as a whole, discloses that Weidlein borrowed money of either the bank or plaintiff, and that he attempted to give him security for such loan by agreeing to ship the hogs in his name so that the draft he drew on defendants would be paid to plaintiff. In order to be a conditional sale by plaintiff,, he must have been the owner of the hogs and must have sold them to Weidlein. The evidence discloses but one view of this matter, and that is that Weidlein was the-purchaser of the hogs from the farmers, and that he became the owner. Plaintiff never saw them. He did not know from whom they were bought, nor did he control, advise or know what price was being paid for them. Nor did he or the bank pay for them. The bank merely paid Weidlein’s checks which were given for the hogs. Paying a customer’s check is not paying for the property the customer purchases. It is merely paying the customer’s money on his order. The fact that the customer may have no money in the bank does not alter the matter, the payment is made by the draweeof the check [570] The evidence clearly shows the object of plaintiff in the transaction. ' It was not to get rid of property he did not want; for his getting it and disposal of it, according to his own statement, was practically at one and the same time. It was not for a profit on the sale, for he was to get only the price he had paid out. I mention these matters merely to show that the idea of their being property in plaintiff which he sold to Weidlein is altogether unreasonable. The whole scheme, as is clearly disclosed by plaintiff, was that he or the bank merely loaned or advanced money to Weidlein with which to buy stock and upon which stock he was to secure the advancement. Plaintiff as president of the bank and the bank itself were neither engaged in buying, selling or shipping stock. We shall, therefore, hold the transaction to have constituted a mortgage, and it not being acknowledged •or recorded it would be void under the law in this state and in the absence of proof we will assume the law of Kansas to be the same. Flato v. Mulhall, 72 Mo. 522; Hill v. Wilkes, 41 Ga. 449; Norris v. Harris, 15 Cal. 226. II. Having determined that this was a loan of money and not a sale of property, we hold that the testimony discloses that the plaintiff has no interest in this controversy. The money was advanced or loaned by the bank, and the draft was drawn to the bank. Indeed, the plaintiff here only figures in the money transaction as president of the bank, advising or directing the cashier to pay Weidlein’s checks and to draw his draft. He says he paid nothing originally and has not paid anything since. He furthermore refuses to say that he is even liable to the bank for the money advanced. His whole evidence shows (in the most favorable way in which it can be construed) that he simply requested the bank to advance the money he is now seeking to recover as an individual. The judgment is affirmed. All concur.