shipped in the name of Hockman, and two in the name of Hollingshead, in order to get a pass for said Hollingshead east over the railroad. The bills of lading were issued to Hockman. The draft on Tough for $2,600 was attached thereto, and sent for collection, by Anderson Bros., by whom it had been cashed, to the Utah National Bank at Ogden, and by it sent to the Merchants' National Bank, Kansas City, Mo., for collection. The horses were consigned to Anderson Bros. When the stock reached Kansas City Stock Yards, Tough refused to honor or pay the draft, but held the horses for the freight bill due the railroad, amounting to $2,180.92, for a feed bill due the yards for $333, and until the draft for $2,600 should be paid. The evidence was conflicting as to the ownership of the stock,-whether it was Taylor's, or whether the title was to remain in Hockman until he was fully paid. Hockman claimed the stock as his until the balance of the purchase money, $1,000, due him, was paid, and refused to allow them to be removed or sold until this was done. Hoefer learning, through a friend, the condition the stock was in at Kansas City, met with Taylor at Higginsville, his place of residence, who assured him that they could be purchased cheap, and that if he would buy them he (Taylor) would agree to attend to and sell them for him. Hoefer wanted to be indemnified against any loss that he might incur by reason of the investment, and in order to induce him to buy the stock Taylor and his wife executed to him their note for $2,750, and secured its payment by deed of trust on a house and lot of Mrs. Taylor's in the town of Higginsville, and a couple of horses, all valued at $1,700. Taylor was to handle the horses for Hoefer for any ultimate profit there might be on the sale of them, after the amounts Hoefer had invested in them should be refunded to him, but was not to be liable for any expenses. There was indorsed on the note executed by Jane L. and J. M. Taylor this memorandum: "This note is given to secure against loss on horses bought at Kansas City." The note and deed of trust were executed October 26, 1891. Hoefer went to Kansas City on the day following, and, as stated in his evidence, he purchased the stock from Hockman for the sum of $5,000, and took bill of sale therefor, paying on said purchase $5,133.92, as follows: The draft for $2,600; freight bill, $2,180.92; and feed bill, $353. Hockman, in his testimony, denied selling the stock to Hoefer, said that it did not then belong to him, and that when he signed the bill of sale he did not know what it was, and made it out to help Taylor. Taylor was a party to or agreed to the sale of the horses by Hoefer. Hoefer then concluded the agreement with Taylor which they had under consideration, by which Tay1or was to give his attention to the care of and selling of this stock, Hoefer to incur all expense; and after they should be sold, and

all amounts invested by Hoefer, and $500 as a profit to him in the transaction were repaid to him, Taylor was to have the surplus profits, if any, for his services. And it was agreed that a note should be drawn up, payable to Charles Hoefer as cashier, for the amounts Hoefer had paid out, to be signed by Charles Hoefer by J. M. Taylor, to be held as a memorandum when they should settle profits, and to be credited by proceeds of horses as sold. When this note was being written, Tough asked Hoefer to include a $350 debt due him by Taylor, which was done with Taylor's assent in case the horses should bring enough after Hoefer was repaid. The whole amount paid out for this stock by Hoefer, and including $500 profit to him, and the $350 to be paid to Tough in case the horses should bring enough after Hoefer was paid, amounted to $5,983.92; after deducting from which the amount of the $2,750 note executed by Jane L. and J. M. Taylor to Hoefer, cashier, left $3,234, for which a note was executed by Charles Hoefer and J. M. Taylor to the order of Charles Hoefer, cashier, due at four months, to which a memorandum was pinned as follows: "This note is charged on book of bank for $2,634.00, $350.00 to be paid to W. S. Tough, Mg'r of K. C. Stock Yards, provided the whole am't of note is paid out of proceeds of horses this day bought of K. C. Stock Yards." And on the 29th of October, 1891, Charles Hoefer executed his individual note to the order of the Bank of Higginsville, of which he was cashier, for $2,750, due at four months, with 8 per cent. interest from its date, and indorsed and delivered the $2,750 note executed to him as cashier by Jane L. and J. M. Taylor to said bank as "collateral security" on his said individual note to the bank for the same amount, thus making the transaction his individual matter. After paying for the horses, mares, and colts, Charles Hoefer gave his receipt to the stock yards for the same, specifying the amounts he paid therefor as aforesaid; whereupon the stock was turned over and delivered to Hoefer, with the assent of Hockman and Taylor, and transported to Lafayette county, where they were put upon pasture. Only two of the horses had been sold by Hoefer up to the time of the levy of the writ of attachment. The note given by Taylor, Reed, and Dooley to Hockman for $1,000, dated October 27, 1891, was executed after the sale of the stock to Hoefer; Hoefer having refused to pay Hockman that amount in addition to the amount of the draft, freight bill, and feed bill for the stock, and refused to sign or become liable on this note, but by verbal agreement, with the assent of Taylor, agreed that $1,000 should be paid to Hockman out of the profits on the horses, if any, when sold, to be paid next after Tough's $350 and before Taylor was to get any part of the profits in the resale of the horses. Hockman never realized anything

on this note, which, when it became due, was protested for nonpayment.

The court, at the instance of plaintiff, instructed the jury as follows: "(1) The court Instructs the jury that the law devolves upon the interpleader the burden of proving by a preponderance of the evidence that he was on the 21st day of November, 1891, the owner of the property in controversy; and unless he has so proven to your reasonable satisfaction, you will find for the plaintiff." And on behalf of the interpleader gave the following instructions: "(1) The only issue for the jury to determine in this action is whether or not Charles Hoefer, the interpleader, was the owner of the property in controversy at the date of the levy of the attachment thereon in favor of Oscar E. Hill against James M. Taylor; and if the jury believe from the evidence that said interpleader was such owner at such time the jury will find for the interpleader, and return their verdict in the following form, to wit: 'We, the jury, find the issue for the interpleader, Charles Hoefer.' (2) The court instructs the jury that as to whether Brick Hockman was or was not of legal age at the time of the alleged sale and execution of the bill of sale in evidence by him to the interpleader, Hoefer, is immaterial as to the issue now on trial, as said Brick Hockman is not a party to this proceeding, and is not here claiming the property attached, or any of it. (3) If the jury believes from the evidence that one Brick Hockman was in the possession and control of the property in controversy, claiming the right to sell the same; that he entered into an arrangement with J. M. Taylor, by which the said property was shipped to Kansas City, a draft be ing drawn by the said Taylor on the manager of the Kansas City Stock Yards for $2,600, and attached to the bills of lading issued by the railroad company for the said stock; that the said stock, after shipping, still remained under the supervision and charge of said Hockman, subject to the lien created by the draft and bills of lading and charges of freight, feed, and other expenses; that whilst the said stock remained in the stock yards at Kansas City they were held for the payment of the said draft, freight, and other charges; that, in addition thereto, the said Hockman also claimed the possession and control of the said horses; that while in this condition the interpleader, Hoefer, in good faith paid off said draft and the railroad and stock-yards charges thereon, under an agreement with the said Hockman, and took from him a bill of sale for the said property; that the possession of the said stock was then turned over to him, the said Hoefer, by the said Hockman, and the manager of the stock yards,-then the said Hoefer became the owner of the said property; and you will so find even though you may further believe that an agreement existed between the said Hoefer and J. M.

Taylor that any surplus above the amount so paid by Hoefer, and certain other sums, on a sale of property, if there was any surplus, should go to the said Taylor in payment for his services in looking after and selling said property."

There were a number of instructions asked by the plaintiff and refused, which were predicated upon the theory that if there was a contract or agreement between Hoefer and Taylor, by which Taylor was to sell the horses, and derive some benefit from such sale, such an arrangement was fraudulent and void as to the creditors of Taylor. To this contention we are not prepared to give our assent, whether the arrangement was secret or otherwise. Nor is it sustained by any of the authorities cited by plaintiff in support thereof. In the case at bar the sale was unconditional, at a fair price, for cash, followed by a transfer of the possession of the property immediately after the purchase to the purchaser; and it makes no difference whether it was sold by Hockman or Taylor or both, and this even though Taylor's purpose and intention in selling the property may have been to delay or defraud his creditors, as there was no evidence tending to show that the interpleader had knowledge of any such fraudulent purpose on the part of Taylor, even if such purpose existed, or that he had any knowledge that Taylor was in debt or insolvent. He seems to have purchased the property at the request of Taylor, it is true, but on speculation, as by the terms of his contract with Taylor the money laid out by him was to be refunded to him, together with a bonus of $500, and then Tough was to be paid $350, owing him by Taylor, and Hockman $1,000, remaining due him on the purchase price for the horses which were sold by him, before Taylor was to receive anything for his services in handling and selling the horses after they were purchased by Hoefer. Taylor had no interest whatever in the property after it had been sold to Hoefer, who had paid a fair price, and had taken possession and absolute control of it; and there was nothing to prevent the employment of Taylor to render services in and about the property in the same manner and for the same purpose as any other agent or employé. Claflin v. Rosenburg, 42 Mo. 439; Burgert v. Borchert, 59 Mo. 80. Not only this, Taylor's object in disposing of the stock seems to have been to protect the draft for $2,600, which he had drawn on Tough, and to pay the freight and feed bills for which the stock were held, so that they might be removed from the stock pens, where the expense of their keeping was rapidly absorbing their value. And to do this it was necessary that he procure some person to buy them, and at his request Hoefer did so, and, so doing, was guilty, from what appears from the record, of no wrongdoing. While Taylor's conduct in buying the stock as agent without saying for whom,

but ostensibly for Tough, who denied his au thority to do so, and repudiated his actions in that regard, then shipping them in the name of Hockman and Hollingshead, under consignment to Anderson Bros., tended strongly to show that his object in so doing was to defraud his creditors, it was not shown that the interpleader had any notice of those facts at the time of his purchase; and at the time of the sale to Hoefer, Taylor seems to have had an entirely different object in view, which was to protect the draft and pay the freight and feed bills, as hereinbefore stated. But it is not sufficient that there was a suspicion of a fraudulent intent on the part of Taylor to defraud his creditors at the time he purchased and shipped the horses from Idaho Falls. It must have been shown to have existed at the time of the sale to Hoefer, and that Hoefer had knowledge thereof. Dougherty v. Cooper, 77 Mo. 523; Garesché v. MacDonald, 103 Mo. 1, 15 S. W. 379; Frederick v. Allgaier, 88 Mo. 601.

We think the court committed no error in sustaining the objections to the evidence in regard to Taylor's indebtedness in Idaho upon the ground that the information solicited thereby was mere hearsay. Had it been proposed to show his indebtedness by some person who had personal knowledge thereof, the objection would not, in all probability, have been made; and, if made, would have doubtless been overruled.

It is difficult to perceive how the provisions of sections 1 and 2, p. 170, Sess. Acts 1891, can be invoked in behalf of plaintiff in this case. They have reference alone to "interest" and "usury," and could in no way af fect the contract or agreement between Taylor and Hoefer, so far as the plaintiff is concerned. In other words, plaintiff being no party to the contract between Taylor and Hoefer, the statute does not apply as to him, and Taylor is not complaining. For the same reason the age of Hockman was immaterial, for although he may have been under age at the time of the sale of the horses to Taylor, and the execution of the bill of sale to Hoefer, he is no party to this suit, and is not seeking to avoid either contract on account of his minority, and no one else can do so for him. The instructions that were given presented the case fairly to the jury. The judgment is clearly for the right party, and should be affirmed. It is so ordered. All

concur.

NATIONAL BANK OF COMMERCE OF
KANSAS CITY v. MORRIS et al.
(Supreme Court of Missouri, Division No. 2.
Dec. 4, 1894.)
CHATTEL MORTGAGE-SALE BY MORTGAGOR-EF-
FECT-SEIZURE BY MORTGAGEE.

1. Where a chattel mortgage provides that, if an attempt is made to sell the property or to remove it from the county where it is situated, the mortgagee may sell it, he may seize

the property if it is sold by the mortgagor without his consent.

2. The mere statement of one that he is an agent of the mortgagee, empowered to authorize the mortgagor to sell the mortgaged chattels, does not create an agency.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Trover by the National Bank of Commerce of Kansas City, Mo., against Nelson Morris and another. Judgment for plaintiff, and defendants appeal. Affirmed.

For prior report, see 21 S. W. 511.

Aug. Binswanger, Chas. M. Reber, E. S. Robert, Boyle & Adams, and H. M. Pollard, for appellants. John C. Orrick, for respondent.

BURGESS, J.

This is an action of trover and conversion of 570 head of cattle. The trial resulted in a judgment for plaintiff in the sum of $11,979.05, from which defendants appeal. The case was before this court on a former occasion, and will be found reported in 114 Mo. 225, 21 S. W. 511, to which reference is made for a full statement of the facts. On the last trial an effort was made to show that the cattle were sold by the mortgagors by and with the consent of the mortgagee, Dunn, and that at the time of giving such consent he was the agent of plaintiff. At the instance of plaintiff, the court, over defendants' objections, declared the law to be as follows: "(1) If the court finds from the evidence that on or about November 5, 1890, the plaintiff agreed with G. A. Dunn to accept, and did accept, the note of Webber and Wilson for $15,675, dated October 22, 1890, secured by chattel mortgage, in lieu of the mortgage held by it on said cattle, given by said Dunn to secure his note to this plaintiff dated May 2, 1890, for $15,000, maturing November 5, 1890, such agreement and acceptance operated as a release in fact of the mortgage given by said Dunn to this plaintiff, and plaintiff could not thereafter enforce the same against the said cattle. (2) The court declares the law to be that the rights of the plaintiff to the cattle in question must be determined by the laws of the state of Kansas, where the sale by Dunn to Webber and Wilson occurred; and that a mortgage, to be valid under the laws of the state of Kansas, must be deposited in the office of the register of deeds of the county where the mortgagor resides, and there noted in books. in said office, there kept for that purpose, as fully appears by the laws of the state of Kansas, and by the testimony of the registers of deeds of Edwards and Stafford counties, in evidence in this case; and if the court finds that Webber and Wilson gave a note for $15,675, representing the purchase money for these cattle, and, to secure pay ment of the same, executed a mortgage to G. A. Dunn, the owner, and that said Webber and said Wilson respectively resided in said Stafford and Edwards at the said time, and

that a true copy of said mortgage was recorded in said counties, and that said Dunn, to secure a bona fide indebtedness to this plaintiff in the sum of $15,000, gave his negotiable promissory note to said plaintiff in renewal therefor, and, to further secure the same, indorsed said note received by him from said Webber and Wilson, and delivered said note, secured by said mortgage, to said plaintiff; and that said indebtedness to plaintiff has not been paid, but remains unpaid, in whole or in part, and that plaintiff continues to hold said note given by said Webber and Wilson to said Dunn as collateral, as aforesaid; and that said cattle were disposed of, without the knowledge or consent of this plaintiff, to defendants,-then defendants obtained no title to the same, and plaintiff is entitled to recover of defendants the fair market value of said cattle at the National Stock Yards, East St. Louis, Illinois, on the day defendants claim to have purchased the same, not exceeding the sum of $15,675, with interest from December 10, 1890, at six per cent. per annum, on such fair market value to date; and the fact that defendants may have in good faith paid full value for said cattle does not relieve them from liability in this action. (3) If the court finds from the evidence that G. A. Dunn, on or about November 5, 1890, being justly indebted to plaintiff in the sum of $15,000, gave his negotiable promissory note therefor to plaintiff, and, as collateral therefor, transferred to plaintiff the said note of Webber and Wilson to him for $15,675, secured by mortgage here in evidence, and that on December 10, 1890, this plaintiff was the owner thereof, then, and in that case, any permission given by said Dunn to said Webber and Wilson to sell said cattle does not relieve defendants from liability in this action. (4) If the court finds from the evidence that George A. Dunn was the owner of the cattle in question in the state of Kansas; that he sold them to W. D. Wilson and B. A. Webber for $15,675, and took their notes, at ten months after date, for said sum, secured by the chattel mortgage on same in evidence; that copies of the said mortgage were in the month of November, 1890, duly deposited with the register of deeds of the counties in Kansas, as provided by the laws of Kansas where said Webber and Wilson resided; that the said Dunn, at or about said date, transferred and assigned said note and mortgage to the plaintiff to secure the sum of $15,000, evidenced by said Dunn's note, owned by the plaintiff; and that the plaintiff owned and held said mortgage and note of Webber and Wilson at the time said cattle were disposed of to the defendants, and were disposed of to defendants without the knowledge and consent of the plaintiff,-it will find for the plaintiff an amount equal to the market value of said cattle at the St. Louis National Stock Yards on the date that defendants obtained possession of said cattle, not exceeding, with six

per cent. interest per annum thereon to date, the amount of said note of said Webber and Wilson, with interest at ten per cent. per annum from October 22, 1890, to date."

Defendants asked the following declarations of law, which were refused, and they duly excepted: "(1) If the jury find the facts to be true as stated in instruction No. 1, as asked by defendants, then the verdict must be for the defendants, notwithstanding the fact, if it be a fact, that Webber and Wilson, or either of them, never paid over the money received on the sale of the cattle to said Dunn, or to said plaintiff. (2) If the jury believe from the evidence in this case that between October 22 and November 8, 1890, Webber and Wilson purchased of one G. A. Dunn the cattle referred to in the petition; and if, as consideration for said purchase, said Wepper and Wilson agreed to, and did, execute and deliver to said Dunn the note for $15,675, and the chattel mortgage read in evidence; and if, in order to induce said Webber and Wilson to so purchase said cattle on the terms aforesaid, or as any part of the consideration for the said contract of purchase, the said Dunn gave permission to said Webber and Wilson to sell said cattle, at any time they pleased, notwithstanding the terms of said chattel mortgage, in order to raise the money to pay for said cattle; and if, on the terms aforesaid, said cattle were delivered by said Dunn to Webber and Wilson; and if the jury believe from the evidence that, after receiving said note and chattel mortgage, the said Dunn indorsed said note, and delivered it with said mortgage to the plaintiff bank, as collateral security for the payment of a pre-existing indebtedness due by said Dunn to the plaintiff, and for no other consideration moving the said Dunn so to do at the time; and if the jury find that, pursuant to the permission to sell so given by said Dunn, the said Webber and Wilson, or either of them, transported said cattle from the state of Kansas to the city of East St. Louis, in the state of Illinois, and there delivered said cattle to certain public stock yards kept there for the reception of cattle intended for sale, and there employed the firm of Cash, Overstreet & Stewart, cattle brokers, to make sale of said cattle for them; and if, pursuant to such employment, the said firm of brokers sold said cattle in open market, to the defendants, for their fair and reasonable value; and if the defendants at the time were residents of the state of Illinois, and purchased said cattle without any knowledge of any claim of the plaintiff upon the same,then the plaintiff cannot recover in this action, and your verdict must be for the defendants."

There is really but one question to be passed upon by this court, and that is the action of the trial court in giving the third declaration of law on behalf of plaintiff, and in refusing: those prayed for by defendants, which, in effect, ignored the defense that G. A. Dunn,