Sedalia National Bank v. Cassidy Bros. Live Stock Commission Co. , 109 Mo. App. 249 ( 1904 )

BLAND, P. J.

(after stating the facts). — It seems to us that the state of facts, as shown by the record in this case, is sufficient to sustain the finding of the learned trial judge, who certainly found the issues as they should have been found and rendered the proper judgment.in the case. The cattle mortgaged to the bank were kept in hand, located and accounted for every day from the dáy they arrived from Kansas City, Missouri, to the day that they were put in the pens of the National Stock Yards at East St. Louis and sold on the market by the defendant; while the seventy-five head of cattle, if there were any such cattle, mortgaged on February 20,1902, by Hess to the defendant, are not accounted for at all. There is, in fact, no substantial evidence that any one ever saw these seventy-five head of cattle. Hess did not testify and Bright’s evidence, the only witness who ever pretends to have seen the cattle, is wholly unsatisfactory and his pretended identification of them is a mere guess. If Hess owned seventy-five head of cattle when he gave the mortgage, they certainly were no part of the partnership cattle of Cartwright & Hess, for these cattle were not Hess’s individual cattle and were not located in Saline county, where the Hess mortgage described his seventy-five head of cattle to be located at the time the mortgage was given. The cattle mentioned in the bank mortgage are described as “steers.” The cattle mentioned in defendant’s mortgage given by Hess are described as “stags.” It was shown in evidence that the ninety-one head of cattle mortgaged to the bank were what is known by the trade, as stags. On this slender shred of evidence, defendant bases its claim that the cattle, in the face of the overwhelming proof that these cattle, whether steers or stags, were the identical cattle covered by the bank’s mortgage. The error, if it was error, in classifying the cattle as steers, in the bank’s mortgage, when they should have been classified as stags, in view of the fact that the breeds, ages, colors and location of the cattle were correctly stated in the mortgage, did not invalidate it, nor conld Bright, if he is an ordinarily prudent man, have been misled by this erroneous classification, as he in his evidence claims he was; but whether he was or not, is wholly immaterial to any issue in this case, since it clearly appears that this ninety-one head of cattle were partnership cattle and for this reason could not be mortgaged by Hess, one member of the partnership, without the consent of the other member, for the purpose of securing his individual debt so as to defeat the claim of the partnership creditors. [Ewart v. Mercantile Company, 130 Mo. l. c. 117, 31 S. W. 1041; Harvey v. Stephens, 159 Mo. 486, 60 S. W. 1055; Rock Island Imp. Co. v. Corbin, 83 Mo. App. 438.] The bank was a partnership creditor and took possession of the cattle as such and had the shipment made in its own name and was, independent of its mortgage, entitled to the proceeds of the sale as a creditor of the partnership of Cartwright & Hess.

The court refused a number of declarations of law asked by the defendant. "Whether these declarations were correct or not is immaterial, for the reason the evidence is so clear and convincing that the judgment is for the right party; that error in refusing declarations of law, the issues having been submitted to the court, was not prejudicial and does not call for a reversal of the judgment.

The judgment is affirmed.

All concur.