Seibert v. True

¶1The opinion of the court was delivered by

¶2This was an action brought by Seibert as the assignee of William IT. R. Lykins against James E. True. Ey the pleadings it became in effect an interpleader to ascertain who was entitled to the money, True admitting that he owed it to somebody, and asking the court to determine to whom he should pay it. The case was tried by the court, and special findings of fact made, and judgment entered accordingly.

¶3l. Practice, on appeals, m equity cases, The counsel for plaintiff in error' claim that this is a chancery case, and that this court must proceed with it as though it was an original case, and inasmuch as all the evidence is in the record, this court must proceed as the court of review formerly did on appeals in chancery cases, ^ x x ° ' and, disregarding tlie findings of tlie court below,

¶4examine the evidence as though it was originally given in this court. The counsel overlooks a material change made in the code as to the manner of taking evidence in chancery cases, a change which compels corresponding action on the part of this court. In chancery cases, before the code, all the evidence was originally presented to the chancellor in writing, and the reviewing court had the same opportunities to form an opinion on it that the chancellor had. Rut under the code the court, when it tries a case hears oral testimony, and has the same opportunities to judge of the credibility and weight of testi*60mony that a jury has. The court, like a jury, sees the witness, observes his intelligence, his leanings, and his manner as a witness, and can thus form a more correct judgment of the value of the testimony than this court can. Therefore this court will not set aside the findings of a court, even in an equitable proceeding, unless from an examination of the record we are able to say that the findings are wrong. A careful examination of the evidence in this case authorizes us to say that the findings are amply supported by the evidence.

¶5The findings will be of themselves a sufficient history of the case to enable the reader to understand the decision of this court. They are as foliows:

¶6“On or about the 17th of April, 1867, George A. Matthews purchased of one Michael Driskell thirty head of cattle, and paid part of the purchase money to said Driskell, and gave his note for the sum of $1,325 for the balance due, payable to the order of said Driskell in ninety days after date, with interest. The note was dated April 17th, 1867. Of the cash payments made by said Matthews to said Driskell on said cattle, the said Wm. H. R. Lykins advanced to said Matthews the sum of $250, and said Lykins signed said note of $1,325, jointly with, and as the security of, said Matthews, and took from said Matthews a bill of sale for said thirty head of cattle. Said bill of sale is absolute on its face, and purports to be for the consideration of $1,500; but it was intended and considered by the parties as a chattel mortgage, and as a security for the said $250 advanced by said Lykins, and also to indemnify him as the- surety on said note,.and no other consideration passed. Matthews owned and possessed seven other head of cattle, not included in said chattel mortgage, making in all thirty-seven head of cattle owned by said Matthews. On or about the 1st of May, 1867, Matthews employed the True Brothers to herd and take care of said cattle, and the said True Brothers gave a receipt for the thirty-seven head of cattle in the name of W. Ií. R. Lykins. The True Brothers took charge of said cattle, and in a few days thereafter Matthews went south to Texas, to purchase cattle, and has never returned to this section of the *61state. About the last of June or first of July, Lykins said be bad a letter from said Matthews directing the cattle to be sold and the money applied to the payment of said note to Driskell. Before said note fell due it was purchased by defendant “Winters, of Driskell, who indorsed and transferred it for a full and valuable consideration. Lykins paid on said note to the said defendant Winters, shortly after the same fell due, the sum of $200, and $50 in October, 1867, making in all $250. The court find that the balance of said note, with the interest thereon, is due to the said defendant Winters, amounting to the sum of $1,211.82. The court further find that after the death of said Matthews, and on or about the 4th of October, 1867, said Lykins sold the thirty-seven head of cattle to the defendant James E. True for the sum of $1,880.67, which said sale has since been duly ratified by the said R. W. Sparr, administrator of the estate of the said George A. Matthews deceased; and that said sum of money is now in the hands of the said True, to be paid over to the parties entitled thereto; that of this sum $1,524.60 are the proceeds of the cattle embraced in said chattel mortgage, and $356.07 thereof are the proceeds of the balance of said cattle, after paying all expenses. The court find that the said Winters repeatedly called on said Lykins for the payment of said Driskell note, after the same became due; that the said Lykins promised the said Winters to, pay said note, and lift the same, as soon as'the cattle embraced in said chattel mortgage were sold. The court further find that at the time of the sale of said cattle to said True, as aforesaid, the said Matthews was dead; and that after the death of the said Matthews the said Sparr was duly appointed administrator of his estate, by the probate court of Douglas county, and qualified as such;.that on the 10th of October, 1867, said Lykins made a general assignment of all his property, debts, claims, and dioses in action, including said claim of $1,880.67 against said defendant True, unto the plaintiff Seibert for the benefit of the creditors of said Lykins, without preference; and that said defendant True has been *62garnisheed on said claim at the suit of "Win. Rosenthal v. W. H. R. Lykins in the district court of Eranklin county.

¶7“ Upon these facts the court find as matter of law, that the plaintiff Seibert is entitled to a judgment against the said True for the sum of $312.78, the balance of the proceeds of the mortgaged property, after paying the said Winters the amount due on the said Driskell note; that the said Winters is entitled to a judgment against the said Time for the sum of $1,211.82, the amount now due -of principal and interest on the said note to Driskell, and assigned to the said Winters; that the said Sparr, as administrator of the said Matthews deceased, is entitled to a judgment against the said True for the sum of $356.07, the jxroceeds of said cattle not included in said chattel mortgage.” Judgment was rendered accordingly, to be suspended as to Seibert until the garnishee suit of Rosenthal should be determined.

¶8As the claims of Winters and Sparr rest on a different basis, they necessarily require a separate examination; and Winters’ claim will first receive our attention. In answer to observations made by the counsel for plaintiff in error, we will remark that the whole evidence places Winters’ claim in a more favorable light than the findings of the court, as it has impressed us. Lykins’ testimony is full on this point; not only his representations to Winters, when the note was due, that the cattle were to be sold to pay the note, but he testifies that “ It was understood between Mr. Matthews and myself’ that when I realized on the cattle I should pay the Driskell note out of the jxroceeds.” It is true that he elsewhere states that the $250 advanced to Matthews to pay Driskell on the cattle was a part of the consideration for which the bill of sale was made, and this is doubtless, true; nor are the statements at all conflicting. It was unquestionably thought the proceeds of the sale of the cattle would pay what they cost; that is, both amounts. The fall of the value of cattle disajpointed both parties. There was a loss. The testimony is reconcilable only on the hypothesis that the Driskell note was first to be paid. Such a view harmonizes the testimony of Lykins with *63itself, and with the testimony of Winters as to the representations made to him by Lykins when the note became due. While we have thus gone beyond the findings, to the evidence, ' our decision will be based on the findings only. We can go behind the findings to see that they are supported by the evidence; and when that fact is ascertained we look to them to them to see if they support the judgment.

¶92. securities told intrust The law of the ease is, that a surety holds all securities that he takes, in trust, not only for the other sureties, if there are any, but for the creditors also, until the debt is gQ jong as the trust fund can be reached. 1 Story Eq. Jur., §§ 499, 502; New Bedford Institution for Savings v. The Fairhaven Bank, 9 Allen, 175; Moses et al., v. Murgatoyd, et al., 1 Johns. Ch., 119; Phillips v. Thompson, 2 J. C., 418. In Ten Eyck v. Holmes, 3 Sanf. Ch., the vice-chancellor says: “This principle was settled a century and a half ago;” and for a recent illustration of it refers to Curtis v. Tyler and Allen, 9 Paige, 432. This last cited case holds the principle fully. See also the note to Deering v. Earl of Winchelsea, in 1 Leading Cases in Equity, 162, 163, 164, where the authorities sustaining this doctrine are collated. Nor does it make any difference that the creditor did not rely originally upon tlie credit of such collateral security, or know of its existence.

¶10Applying this principle to the case before us, and it clearly sustains the decision of the court as to the claim of Winters as against Lykins; and his assignee is in no better position. It is further urged that there is no proof of Lykins’ insolvency, and no finding of any such fact. It is in proof that he had made an assignment of all his property, including the fund in controversy, for the benefit of his creditors; and that fact is found by the court. Whether this is prima facie evidence of insolvency, we need not determine, for Winters’ rights were not dependent upon that fact. (See Curtis v. Tyler and Allen, supra.) Winters was not bound to wait until the fund went into the hands of the assignee, and assert his rights there. It was a better time for all parties *64to settle the disputed questions in this action. Winters was entitled to the payment of his debt in full, if the sale of the cattle mortgaged was sufficient. . .

¶11Sparr’s claim, as administrator, rested on a much simpler foundation. Matthews owned the seven head of cattle — had always owned them since he bought them; and the testimony is clear that they remained his at the time of his death. Such being the case, and his administrator having ratified the sale made by Lykins to True, was entitled to the money for which they were sold. Lykins5 possession of these seven head, (if such a fact is to be assumed from the receipt given from Time to Lykins, and witnessed by Matthews,) was only as agent for the sale of them; and such agency expired with the death of Matthews, and Matthews5 administrator was entitled to the property. If Matthews died indebted to Lykins, his estate is bound for it; and, as far as the assets go, will pay it. There is nothing to show that Lykins had any preference over any other creditor.

¶123. Evidence; letters of administration Certain other questions were pressed in the argument, which will now receive attention. It is claimed that there was no proof of the death of Matthews. The letters of , , . . . . n , __ aamimstration were m evidence, and this was all the testimony on this point; and this was enough to make a friona facie case. 1 Greenl. Ev., § 550.

¶134. Exceptions racoKi.the Again; it is claimed that a letter written to Sparr by Lykins, after his assignment, was improperly admitted in evidence. The record does not show any such letter; and as it was received subject to objections, and the record purports to contain all the evidence, it is presumed the letter was excluded.

¶145' dorSpíejí£ disrégaidea. Another objection is, that Sparr was allowed to testily as to the contents of a written contract between the decedent Matthews, and Wright and Posey. Witness had seen the contract in the hands of Seibert, and the testimony is this: “It was a contract by which Wright and Matthews were partners, and purchased a lot of Texas cattle of Posey, and agreed to pay therefor on reaching *65ing Kansas with the cattle.” This was all the testimony about the contract. This testimony was clearly incompetent, as no effort was shown to obtain the contract itself. But the fact was immaterial, and was admitted subject to objection as is frequently done where the same tribunal hears the testimony and decides the case, and as appears was done in this case. The fact was not only immaterial, but plainly appears not to have had any influence in the findings of the court, as not one of the facts found in the slightest degree depends upon the contract between Matthews and Wright as to the Texas cattle. The error therefore is not one for which the judgment will be reversed. The judgment is affirmed.