Drumm-Flato Commission Co. v. Barnard

The opinion of the court was delivered by Pollock, J. : The.first contention made is that the trial court erred in refusing to permit plaintiff to file an amended reply, putting in issue agency, as pleaded by defendants in their answer, except upon payment of costs. Under the circumstances of this case, we are inclined to the opinion that the ruling of the court was somewhat harsh and arbitrary, but, in view of the conclusions reached upon the merits, this question becomes immaterial. Again, it is contended that error was committed in the reception of testimony prejudicial to the rights of plaintiff. The material parts of this testimony, and — 574 — sufficient to disclose the nature of the question raised, read as follows • “Ques. Mr. Herndon, state what you did with reference to this communication and in connection with the plaintiff in this suit, the Drumm-Flato Commission Company. Plaintiff objects to this question, for the reason that the evidence will show that whatever was done was done in writing and the writing is ■the best evidence. Objection overruled. Plaintiff excepts. Ans. I was sent by our Mr Hannah, who is a member of the firm, to the office of Drumm-Flato Commission Company with a check for $1200 and asked them to give me a release of the cattle purchased by Barnard from Hale. “Q. Who did you see at the office of the Drumm-Flato Commission Company ? A. I saw Mr. Ewart and Mr. Burnett and I think Mr.- Q. Mr. Ewart and Mr. Burnett? A. Yes, sir. “Q. Did you have any conversation there with either of these men?" A. I asked Mr. Ewart if they had a release for the cattle that Barnard had purchased from Hale. “Q. Who is Mr. Ewart? A. He is secretary of the company. “Q. Secretary of what company? A. Drumm-Flato Commission Company. “Q. What did he say? A. He said no- (interrupted) . “Plaintiff objects to the conversation; they paid ever this $1200 and got a written release at the time. Now, as to what was said is wholly immaterial; the release speaks for itself. “By the Court: Confine it to that date he got the xelease. “By the Court: Was he bookkeeper? “By Attorney Jackson: Mr. Ewart is vice-president or secretary. “ Objection overruled. Plaintiff excepts. “Q. What did he say? A. He said no ; that Mr. Lampé was not in and would have to see him before 'lie could get the release. — 575 — You say you took a check for $1200? A. I •did. “Q,. Did you leave the check there? A. I did not. “Q,. Mr. Herndon, how did it happen that you took a check for this amount? ' “Plaintiff objects as incompetent, irrelevant and immaterial. “Objection sustained. Defendant excepts. “ Q,. Did you go to the office of this company •again? A. Yes, sir. “Q,. When did you go again? A. Later in the day. “Q,. Of the same day?. A. I think so. “Q,. Whom did you find there then? A. I found Mr. Ewart and Mr. Lampe. Mr. Lampe was there at that time. “Q. Do you know Mr. Lampe? A. Yes, when I see him. “Q. What connection does he have with the Drumm-Flato Commission Company? A. I do not know whether he is an officer or a stockholder ; he is one of their cattle salesmen. “Q,. State what you said at that time. A. I again repeated my request for the release. “Plaintiff objects as incompetent, irrelevant, and immaterial, and not the best evidence ; that the release is the best evidence. . “By the Court: The release is only the best evidence of what is in the release. Objection overruled. Plaintiff excepts. “A. I asked them for the release of the cattle purchased by Barnard from Hale upon which they held a mortgage. “Q,. State what was said or done at that time by Mr. Lampe, or Mr. Ewart. A. They set about to find what I wanted, after I told them. “ Q. What did they do? A. After conversing with each other and consulting their record-books, I presume it was, they got me the release and I gave them the check. “Q,. Was there anything said there about the number of cattle to be released? A. Something was said ; — 576 — I do not remember, but I think they asked me if I knew the number of head. “Q,. What did you say ? A. I did not. “ Q,. Did you tell them you did not? A. I did. “Q,. Was there anything said there about any correspondence about these cattle ? A. I think there was. “Q. Well, what was it, if you remember? A. I think Mr. Lampe said to Mr. Ewart that he had had some correspondence in regard to it. “Q,. Did he say from whom? A. He did not, as far as I remember. “Q. Let me ask you, did you make out this check for $1200? A. I think I did. “Q. You may tell if you know who gave you the amount to put in that check? A. Mr. Hannah. “Q,. Of your firm? A. Yes, sir. “Q,. And he is the person that sent you here to transact this business ? A. Yes, sir. “Q. You may look at this release, marked exhibit ‘L/ and state if that is the release given to you there that day ? A. To the best of my knowledge it is.” ‘ ‘ CROSS-EXAMINATION. “Q. At the time you went to the office of the Drumm-Plato Commission Company to procure this release did you have in your possession the letters which have been offered in evidence from A. A. Barnard, you or your firm ? A. We had one or two of them ; I could tell by referring to the date whether I had them or not. “Q,. Will you examine this release and also t-he letters attached to this deposition and introduced in evidence on behalf of the defendants and tell the jury whether or not at the time you went to the DrummPlato Commission Company you had those letters or any of them, and if so what letters ? A. I guess I had them all. “Q. Now, Mr. Herndon, did you show any of those letters to the Drumm-Flato Commission Company or its officers ? A. I never did. — 577 — “Q,. Did you say anything about what you had in those letters ? A. No, sir. “Q,. Did you have that bill of sale in your possession at that time ? A. No, sir. “Q,. When did you get that bill of sale ? A.- Just a few days after ; just as Mr. Barnard says. “Q. You testified once before in this case, did n’t you ? A. You took my deposition. “Q,. Didn’t you say in your former examination on this question that you had the bill of sale in your possession ? A. I do not remember of saying so. “ Q,. At the time you got this release, paper marked exhibit ‘L,’ did you read it? A. The release? “ Q. Yes, sir. A. Yes, sir. ‘ ‘ Q. Asa result of the conversation which you had at that time with the Drumm-Flato Commission Company and its officers and agents, you got this release ; is that true ? “Defendant objects as incompetent, irrelevant and immaterial, and calling for a conclusion of the witness ; the jury can say whether it is as a result of the conversation or not. The defendant objects to the first part as got as a result of this conversation. “Objection sustained. Plaintiff excepts. ‘ ‘ Q,. When did you get this release with reference to the time you had this conversation with the Drumm-Flato Commission Company ? A. Afterward. “Q,. When you got this release, did. you have any further conversation about releasing the cattle that you wanted to release to Barnard and Allis ? A. No, sir. “Q. What did you do with this release after you got it ? A. I do not remember whether it was mailed directly to the register of deeds of this county or whether we sent it to Mr. Barnard. “Q,. I will ask you if it is not true in your deposition in this case, if you did n’t testify that you sent it directly to Mr. Barnard ? A. I might have ; I said just now I might have. “Q. Did you say anything in your examination about'having sent it to the register of deeds? A. I do not know. — 578 — “ . no t true that you did not ? A. I do not ■ “ Q. After you got this .release did you show it to either one of the members of the firm of Wright & Hannah ? A. I did. “Q. Hid they read it ? A. I think so.’’ W. S. Hannah, member of the firm of Wright, Han-' nah & Co., testified : “Ques. In December, 1899, as you have stated, when Paul Hale sold some cattle to the defendants, did you have any talk or correspondence with the defendants in regard to the purchase of those cattle? Ans. The firm had some correspondence with Mr. Barnard. It is admitted by the plaintiff that the correspondence referred to consists of three letters, marked exhibits A, B, and C, attached to depositions taken in the above cause at Kansas City, before E. L. Stephenson, notary public, about March 5, 1901. “ Q. Did you have any conversation with the plaintiff regarding the purchase of the cattle in question ? A. Yes, sir. “Q. With whom did you have your conversation? A. Mr. Ewart. “Q. What relation did he bear to the company? A. I believe he was secretary of the company. “ Q. Did you have conversation with any one regarding the cattle in question, connected with the company? A. Not at that time. “Q. You may state fully what your conversation was with Mr. Ewart regarding the cattle in question. A. My firm had received letters from Mr. Barnard in regard to the purchase of certain cattle from Paul Hale, and I went -down to the office of Drumin-Flato Commission Company to see about paying for the cattle and procuring a release. I talked to Mr. Ewart about it, and he was unable-to give me the release at the time. I returned to my ■ office, and afterwards sent Mr. Ben. P. Herndon, the bookkeeper, to procure the release, by giving them a check. “Q. The letters that you have just referred to are — 579 — the same letters heretofore referred to in your deposition? A. Yes, sir. . • “Q,. You may state what release you were getting from the plaintiff. Plaintiff objects, on the ground that all the conversation between these parties leading up to the giving of this release merged into the release, and, therefore, wholly inadmissible ; inadmissible, what-purpose he may-have had in his-mind for going there. By the Court: I think any conversation relating to this matter occurring between this-company and its officers would be competent. Objection overruled. Plaintiff excepts. A. I was getting release for the cattle Barnard had bought of Paul. Hale, on which Drumm-Flato Commission Company-had a mortgage. “Q,. What number of cattle are you now referring' to? Same objection. Objection overruled. Plaintiff excepts. A. Whatever the release called for. “Q,. To refresh your memory; you stated that the purchase called for about 200 head of cattle ? A. Yes. “Q. Do I.understand that you were getting a release from Drumm-Flato of whatever interest they had in those 200 head of cattle? Same objection. Objection overruled. Plaintiff excepts. A. That was my understanding. “Q. You may state whether or not that was the substance of the conversation you had with Mr. Ewart? Same objection. Objection overruled. Plaintiff excepts. A. Yes, sir, that was. “ Q. At that time, or near that time, or, to be more particular, did you have any conversation with Mr. Lampe regarding the release of these cattle ? A. No, sir. “Q. Who was Mr. Lampe, if you know? A, Cattle salesman for Drumm-Flato Commission Company, and, I believe, a stockholder in the company.” In regard to this testimony, the contention of counsel for plaintiff in error is that the release above set out was procured from plaintiff as a result of the negotiations between the representatives of plaintiff and — 580 — those of "Wright, Hannah & Co., acting for defendants ; that this release is plain in its language, fully expresses the agreement reached by the parties, and, in the absence of fraud, is not open to contradiction or subject to variation by the parol testimony offered. No fraud is pleaded, and there is no attempt at proof of fraud in the transaction. As we understand the position of counsel for defendants, it is not that the terms of this writing may be contradicted or varied by parol testimony of what occurred prior to, or contemporaneous with, the making of the written release, but the contention is that defendants sought information as to the extent of the chattel-mortgage interest of plaintiff in the cattle defendants had purchased from Hale for the purpose of satisfying such lien out of the contract price of the cattle that plaintiff, upon being so advised from a source which it deemed authoritative, whether from its own records or the letter from Hale, determined the extent of their mortgage lien upon such cattle to be $1200, and it was the intention of plaintiff, by the release given and the acceptance of this sum of money, not to release its entire mortgage, but to release all of the cattle covered by its mortgage sold by Hale to defendants, and, hence, the parol evidence offered and received does not vary or contradict the writing. A majority of the court are convinced of the soundness of this contention, and hold the parol evidence offered admissible for this reason. Complaint is made of the instructions given by the court. It is urged that the issues were not clearly defined; that the court embodied the principal part of the petition in his charge to the jury and then informed the jury that the defendants in their answer “deny each and every allegation and averment in — 581 — plaintiff’s petition contained” ; and again, by the third paragraph of the instructions, charged the jury that “ the burden is on plaintiff in this action to prove the material and essential allegations of the petition by a preponderance of the evidence,” without informing the jury what allegations of the petition stood confessed by the pleadings or what comprised the material allegations demanding proof in their support. But the court, in paragraph 5 of his charge, instructed the jux-y as follows : “Before the plaintiff can recover in this case it must establish by a preponderance of the evidence the following essential and material matters: (1) That it had at the commencement of this action the special interest claimed in the property in controversy; (2) that it was entitled to the immediate possession of said property at the time this action was commenced; (3) that said property1 was unlawfully and wrongfully kept from plaintiff by defendants.” We are of the opinion that the jury could not have failed to grasp the issues or understand .the extent of proof requii’ed to establish plaintiff’s right of recovery. Again, one of the principal claims of defendant below upon the trial was that the cattle purchased by them of Hale bore different marks and brands and were different in description from the cattle described in plaintiff’s mortgage. Upon this theory of the defense the court iixstructed as follows : “6. The note and mortgage sued on' are valid instruments ixpon their face, and, as between the mortgagee and a third party, are valid, and impart sufficient notice of the lien on the property therein named, if there is such property in fact, as described therein, corresponding with such description, or if not fully and truly described, yet if the description is su'fficiéht to furnish such suggestions that one examining the mortgage itself by the suggestions therein given'can — 582 — know and identify the property as the property mortgaged, as more fully explained in instruction No, 7 herein. '“7. The jury aré instructed that in order for the description contained in the chattel mortgage to be sufficient to impart notice to purchasers without actual knowledge of the existence of the mortgage, or the identity of. the property,.it should describe the property with reasonable particularity, and must be such that third persons, aided by the inquiries which the mortgage itself suggests, would be able to identify the property as the property described in the mortgage.” This being, an issue in the case, the instructions being unobjectionable in form, and there being some evidence in the record to support the instruction given, we perceive no error therein. In the eighth instruction' the court declared the law as follows : “The jury are further instructed that if, by the terms of the mortgage the property described therein is left in the possession of the mortgagor, and ■ the mortgagee- knowingly consents that the mortgagor may sell said property and receive the proceeds therefor, then the mortgagor becomes the agent of the mortgagee to sell said property, and a person buying the same will acquire the said property free and clear of any incumbrance of said mortgage.” The argument made against the giving of this instruction is that there was no evidence in its support. No question is raised by counsel, and no objection urged, either to the form of the instruction or that it is- unsound as-alegal proposition: W.e.have read the evidence, and from'the prior-course of-dealing between Halé and the'plaintiff, as shown by the'record, and the testimony of Hale as well, we find there was some evidence, tending to authorize an instruction — 583 — along the line of that given, conceding the law to be as here declared. Bitter complaint is made of paragraphs 9 and 10 of the instructions,, which read : “9. A purchaser of property upon which a mortgage lien is claimed has a right to rely upon the statement of the holder of that claimed lien, and if you find that the defendants in this case, through their agents, stated to the plaintiff that they wanted a release from said mortgage for the cattle purchased by defendants from said Hale and covered by said mortgage, and you should further find that the plaintiff, after an investigation from a source it deemed proper, stated that forty head of cattle were all it claimed of said cattle, and the defendants being induced by said representations to believe said statements, and relying thereupon fully, consummated said sale and'paid out all of the purchase-price fór said cattle, a part of which was paid this plaintiff, being the • amount claimed by plaintiff as due them, then, in that case, the plaintiff would be estopped from claiming a further lien on the property. “10. If you find from the evidence in this case that defendants purchased from P. L. Hale certain cattle which had been mortgaged by said Hale to the plaintiff and on which plaintiff at that time held a mortgage, and that afterwards .the defendants paid or caused to be paid to plaintiff a certain amount of money, which it was intended by defendants and plaintiff should be in full payment for a release of the interest that plaintiff had therein by reason of a chattel mortgage thereon, given by said P. L. Hale to plaintiff, and that the cattle in controversy are a part of all said property so intended to be released, then, in that case, the cattle in controversy would be fully released, although the release in writing failed to describe fully the cattle intended to be released.” One of the principal objections urged to the. giving of this portion of the charge is that there was no evidence found in the record upon which the doctrine of — 584 — estoppel can rest. The evidence upon this branch of the case is above set forth. The further objection made is that defendants were not misled to their injury by any act of plaintiff; that the release is plain and unambiguous in its terms ; that defendants could not have been deceived as to its import or the extent to which plaintiff relinquished its lien upon the cattle covered by its mortgage ; and that this release came into the hands of defendants before they parted with any portion of the purchase-money which they contracted to pay Hale for the cattle, except the $1200 paid plaintiff at the time the release was obtained. A majority of the court incline to the opinion there is sufficient in- the evidence to show that plaintiff was informed of the number and description of the cattle purchased by defendants from Hale; that plaintiff was requested to furnish a release of its mortgage on all the cattle so purchased on which plaintiff held a lien, and, in compliance with this request, they received the $1200 and gave the release in question. In this view of the case, there was evidence to warrant the giving of'this portion of the instruction, and the doctrine of estoppel was rightly presented to the jury. Again, complaint is made of the giving of instruction No. 11, which reads as follows : “If you find that the indebtedness, .the note and mortgage sued on, have been paid, then in that case your verdict should be for the defendants. The accounts between Hale and plaintiff were complicated, Hale claiming larger credits than'he had received. While there was slight evidence to support the giving of this instruction, yet we cannot say from the evidence in the record that there was absolutely no proof upon which such instruction might be based. Complaint is also made of the refusal to give cer — 585 — tain instructions requested by counsel for plaintiff. In the view of the case taken by the court, the instructions given by the trial court fully cover the issues submitted to the jury. ■ There was, therefore, no error in refusing the instructions asked. It follows that the judgment must be affirmed. Johnston, C. J., Cunningham, Greene, Mason, JJ., concurring.