Cable & Reed v. Duke

ELLISON, J. The plaintiffs are engaged in the live stock commission business and this is an action [337] of replevin by them for 208 head of cattle, alleged to be of the .value of $6,500. The plaintiffs recovered judgment in the trial court and defendants took an appeal to the Supreme Court on the idea that there was more than $4,500 involved and the jurisdiction was in that court. The petition claimed damages of $1,000 and the plaintiffs received possession of the cattle under their writ. The joint answer of defendants P. M. Woods and Duke admitted they were in possession at time suit was instituted. The ansAver of defendant W. C. Woods denied he was in possession of cattle. Neither of defendants asked damages, or a return of the cattle, or their value in lieu thereof. The case then stood for the recovery of possession alone and for $1,000 damages claimed by plaintiffs. The case therefore was not one where the “amount in dispute” exceeded forty-five hundred dollars. In such consideration the Supreme Court transferred the record to this court for determination. [106 S. W. 643.] The plaintiffs’ claim is based on a chattel mortgage executed by W. C. Woods. The defendants Duke and P. M. Woods’ claim of right to possession is by reason of an alleged agister’s lien which they claim has preference over the mortgage. They also contend that the mortgage was void because of usury. It appears that a note Avas given to plaintiffs by defendant W. G. Woods for $6,500, due in seven months, with interest from maturity at the rate of eight per cent per annum. But Woods only got $6,210. That is to say, he, being indebted to plaintiffs in a sum greater than the note, received credit for that amount on plaintiffs’ books, the latter charging him a “discount” of $290 for the seven months the note was not drawing-interest. This was done for the reason, as stated, that plaintiffs intended transferring the note to a /bank which Avould charge that “discount.” [338] A plea of usury is the personal privilege of the debtor or those standing in privity with him. [Marx v. Hart, 166 Mo. 503, 524; Coleman v. Cole, 158 Mo. 253, 260; Vette v. Geist, 155 Mo. 27, 34; Rubber Co. v. Wilson, 55 Mo. App. 656.] The defendants Duke and F. M. Woods have therefore no right to interpose the defense of usury. But defendant W. C. Woods, the maker of the note and mortgage, of course has such right. We find however that the amount of the discount for the seven months was not a sum greater than interest at eight per cent and therefore, in point of fact, no usury was exacted. It is, however, claimed by the defendants that the mortgage contained a provision that when it came time to market the cattle they were to be shipped to plaintiffs and they were to make the sale on the market at Kansas City for a commission of fifty cents per head. This provision is sought to be connected by defendants with the discount charge and thus make out an usurious exaction. We think it a strained effort and that it is not allowable. The commission charge is for an altogether different service and it is a matter having no connection with the note. The case is wholly unlike that of Cowgill v. Jones, 99 Mo. App. 390, where a bonus was reserved in the face of the note. We have not been able to agree with the contention of defendants Duke and F. M'. Woods that they are entitled to an agister’s lien. The mortgage was executed prior to the beginning of the pasturage and it has priority over an agister’s lien. .[Stone v. Kelly, 59 Mo. App. 214; Lazarus v. Moran, 64 Mo. App. 239; Harding v. Kelso, 91 Mo. App. 607; Everett v. Live Stock Co., 115 Mo. App. 486.] But it is said that while the foregoing is the law, yet if the mortgagee takes the mortgage with an understanding that the animals are to be kept by an agister for hire, his consent thereto will give the agister preference over the prior mortgage. [339] [Miller v. Crabbe, 66 Mo. App. 660.] We however have no such case. Here the understanding between, mortgagor and mortgagee was that no pasturage was to be charged. Furthermore the pasture in which these cattle were kept was one held by the three defendants as tenants in common, under a lease from the owner. The-defendant W. C. Woods, as mortgagor, had a right to-turn his cattle into the pasture and any rights of either of the three, whether considered partners or tenants in common, between themselves, cannot be. allowed to affect the plaintiffs as mortgagees. There were some other points made by defendants against the judgment, including alleged improper admission of evidence, and residence of the mortgagor not being in Bates county. We have examined all of them and find nothing to justify a reversal of the judgment. We have here a valid mortgage executed to secure a valid claim of indebtedness of W. C. Woods, and we have found no reason sufficient to justify a court in preventing its enforcement. We'therefore approve the view of the trial court in its action on instructions, and affirm the judgment. All concur.