Genger v. Albers

WILSON, J.

Plaintiff filed an action in claim and delivery for the recovery of cattle allegedly in the possession of defendant. At the conclusion of the trial the complaint was amended, with the approval of the court, to conform with the proof and to allege conversion. Plaintiff recovered a judgment in the sum of $3,185.76 and this appeal is from the judgment. There is a purported appeal from the order denying defendant ’a motion for a new trial.

[54]

As grounds for reversal, defendant assigns error as follows: (1) that the court had no jurisdiction to render judgment on a second cause of action contained in an amendment, filed after the close of trial, prior to the service of the amendment on defendant; (2) that the court erred in denying defendant’s motion for nonsuit and in granting plaintiff’s motion to amend; (3) that the evidence is insufficient to sustain the judgment.

On June 11, 1946, defendant sold 130 head of dairy cows and a bull to one Marvin Fisher. The transaction was financed by a first chattel mortgage to a bank for $15,000, guaranteed by defendant, and a second chattel mortgage in favor of defendant in the sum of $6,800.

On August 14,1946, plaintiff sold to M. M. Owen and J. H. Flowers, under a conditional sales contract, 26 head of cattle. On September 19, 1946, with the written consent of plaintiff, Owen and Flowers assigned their interests under the contract to Marvin Fisher, at which time the cows were delivered to Fisher. Neither the conditional sales contract nor the assignment was recorded.

In the latter part of September, 1946, defendant called at Fisher’s dairy, at which time he saw the cattle Fisher was purchasing under the conditional sales contract and Fisher told defendant he was paying for one cow a month.

Fisher became delinquent in his payments on the two chattel mortgages and on March 5, 1947,' a representative of the bank called upon Fisher and demanded that he either make suitable adjustment or surrender possession of the dairy herd. Fisher requested three days’ extension, stating he would then be able to pay $10,000. He was granted a 10-day extension provided he would go to the escrow department of a local bank and arrange for surrender of the cattle in lieu of foreclosure if the promised payment was not made. Accordingly, on March 5, 1947, Fisher executed escrow instructions and a bill of sale which were deposited in the bank. The payment was not made and the bank delivered the bill of sale to defendant, who thereupon took possession of 130 cows and one bull, subsequently selling the cows.