Chas. E. Harding & Co. v. Kelso

ELLISON, J. — This is an action of replevin for a lot of cattle. The judgment in the circuit court was for defendant. It appears that one Mock was the owner of the cattle and that he gave to plaintiffs a chattel mortgage on them to secure [610] the payment of a large sum of money, possession being left with Mock. The mortgage was duly recorded. Afterwards, Mock turned the cattle over to defendant to feed and fatten for five months, and one month more if Mock gave thirty days notice to that effect; defendant’s compensation being fixed as follows: The cattle were agreed to be of the weight of 35,110 pounds of the value of $4.25 per hundred. At the end of the five months, they were to be weighed back to Mock at $4,825 per hundred; but if the time of feeding was extended the one month provided for, they were to be weighed back at $4.94 per hundred. It seems that at about the expiration of the five months Mock desired them to be fed the extra month, but, by some means, did not give the proper notice, and defendant claiming to be released from his obligation to keep them, they agreed that he should keep them for that time when they should be weighed back at $5 per hundred, instead of $4.94, as originally stipulated. Defendant had been feeding the cattle about three months before plaintiffs became aware of this contract with Mock. Their agent was then informed that defendant had them and of the terms of the original contract between him and Mock. The agent did not disapprove of the contract, but expressed satisfaction with the way they were getting on, and a willingness'that defendant might continue to feed them. Defendant, however, did not act upon the suggestion of plaintiffs. He continued to feed them, it is true, but there is nothing in the record to show that plaintiffs’ statement to him influenced him to do so. The record rather shows that he continued to feed because of his reliance upon the contract with Mock. He did not recognize the right of plaintiffs to interfere. He took no action, nor did he refrain from any action on account of what plaintiffs said to him. Plaintiffs, on their part, claim that they did not attempt to disturb defendant with the cattle for the reason that the note secured by the mortgage was not then due and that defendant’s possession under the con [611] tract did not break any of tbe conditions of tbe mortgage. Neither plaintiffs nor their agent knew anything of the change aforesaid which was afterwards made in the contract. The substance of the court’s instruction to the jury was that if plaintiffs’ agent, after being informed by the defendant of the contract, as detailed above, assented thereto and authorized the further performance thereof, then it was a ratification and the finding would be for the defendant for the amount of his bill. And that in fixing the amount of the bill, the jury should calculate the weight of the cattle at $5 per hundred pounds, the sum agreed upon in the supplemental contract already mentioned. I am inclined to the view that notwithstanding it be conceded that plaintiffs, after becoming aware of the contract, permitted defendant to go on with it, yet since defendant relied on his contract and did not recognize plaintiffs’ rights and did not act on their suggestion, he can not claim any advantage from plaintiffs’ conduct. But it is not necessary to put our decision on that ground. It is enough to determine this case in plaintiffs’ favor that the contract as it finally became under the supplemental agreement aforesaid, was never assented to by plaintiffs, for they never knew of it. Defendant’s defense in the trial court and which prevailed there was based on a contract which it is conceded plaintiffs never validated. Defendant therefore is not entitled to a lien. The law is that a chattel mortgage is the superior lien to that of a subsequent agister’s claim, unless the mortgagee in some way assents to taking second place. Stone v. Kelly, 59 Mo. App. 214; Lazarus v. Moran, 64 Mo. App. 239; Miller v. Crabbe, 66 Mo. App. 660. So it is clear that whatever right defendant may have had, founded on the original contract, was waived by entering into an independent supplemental contract which supplanted the original and which was in no way contemplated by the original. [612] As defendant was bolding the cattle under the contract to which plaintiffs never assented, it is manifest that no demand by plaintiffs was necessary. Defendant was without right. The judgment should have been for plaintiffs and it will in consequence be reversed and cause remanded. All concur.