Northern Counties Bank v. Earl Himovitz & Sons Livestock Co.

We granted a rehearing in this case because at the time of preparing our original opinion we were under a misapprehension concerning an important circumstance. The circumstance involved the actual date and the conditions under which a negotiable draft bearing date of November 30, 1960, was issued to Himovitz, the third party claimant. Both parties to this appeal agree as to the actual event. Not by way of complaint but simply in passing, we note that appellate courts do not have the benefit of trial court findings in third party claim proceedings.

Jack Rose was an independent cattle buyer and feeder. During 1959-1960 his operations were financed by Earl Himovitz and Sons Livestock Company. Rose would select cattle and agree to buy them in his own name. Himovitz would advance the funds. Rose and Himovitz would then sign a so-called “sale and repurchase agreement.” According to this agreement Himovitz would “purchase” the cattle; Rose would pay Himovitz-a deposit of $20 per head and agree to “repurchase” the cattle at the end of the feeding period. During the feeding period risk of loss was borne by Bose and the cattle bore his brand. The “repurchase” price would be calculated to…