Gosselin v. Concordia Milling Co.

The opinion of the court was delivered by Hopkins, J.: The action was one to enforce a chattel mortgage upon growing wheat. The plaintiffs prevailed and defendant appeals. Plaintiffs are merchants at Aurora; defendant, a milling company at Concordia. Lewis Hubert, tenant on a farm of ,H. C. Duff, gave two mortgages on forty acres of wheat, one to the First State Bank, of Aurora, a second to the plaintiffs. When the wheat was harvested, Hubert and Duff had a talk with the cashier and manager of the bank, and was told to haul the wheat, dispose of it and account to the bank. The banker testified: “Q. You make no claim to the proceeds of the wheat? A. No. “Q. Since your talk with Lewis Hubert and Duff in the bank, you have claimed no lien upon the proceeds of the wheat? A. No; we never have upon the proceeds of the wheat; we claimed nothing, but we knew nothing of the transaction except as the evidence shows. “Q. As cashier, have you ever attempted to claim any interest in the lien? A. Not interested in the proceeds of the wheat. “Q. Then so far as your mortgage is concerned, you will not look to the lien on the wheat but to the other property for the payment? A. Yes.” The wheat was sold and delivered to the defendant. The court concluded: “That at the time the defendant purchased the wheat the plaintiffs held an unsatisfied chattel mortgage upon the same in the sum of $543.78 and [835] accrued interest; that the first mortgage on said wheat had been verbally-released and that the plaintiffs’ mortgage was duly recorded and was constructive notice to the defendant of plaintiffs’ lien; and that the plaintiffs should recover in this action.” The bank held a first lien on the wheat. The evidence was sufficient to support the court’s finding and conclusion that the bank verbally released its mortgage. The mortgage of plaintiffs then became a first lien on the wheat and they were entitled to recover from the purchaser, subject to the landlord’s lien—a matter not in dispute. (Bank v. Equity Exchange, 113 Kan. 696, 216 Pac. 278; State Bank v. Mercantile Co., 115 Kan. 604, 223 Pac. 1089.) The judgment is affirmed.