First Nat. Bank of Mercer, P.A. v. Citizens' Nat. Bank of Norfolk , 110 C.C.A. 62 ( 1911 )

ADAMS, Circuit Judge.

This suit was instituted by the plaintiff in error, who was plaintiff below, to recover from the defendants in error, defendants below, the value of 85 cattle, which had been mortgaged to plaintiff by one S. W. Deuel to secure the payment of a debt of $3,000 due from him to the plaintiff. It was alleged in the petition that the defendants, with full knowledge of the existence of plaintiff’s mortgage, caused the cattle mortgaged to be sold and disposed of, and appropriated the proceeds thereof to their own use. issue having been joined on this allegation, the cause went to trial, and resulted in an instructed verdict for the defendants.

A careful review of the evidence fails to disclose that the defendants had anything to do with the sale or disposition of the cattle in question. They were sold by the mortgagor of his own motion, without even the knowledge, so far as this record discloses, of either of the defendants. The fact that Deuel at the time in question owed the banks some mone;y was made the occasion of a searching examination of their officers by counsel for the plaintiff, in an attempt to show that some part or all of the purchase price of the cattle was appropriated to the payment or reduction of Deuel’s debt to the banks; but this examination proved ineffectual. It failed to disclose, with any degree of definiteness, that either of the banks received any of the proceeds of the sale of the cattle; and certainly there is no substantial evidence of knowledge on the part of either of the defendants that they were receiving such proceeds. The trial court characterized the evidence as too uncertain and conjectural to establish the right of recovery under the pleadings in the case.

This we think was right, and the judgment is affirmed.