Producers Livestock Loan Company, a Corporation v. Idaho Livestock Auction, Inc., a Corporation

230 F.2d 892 PRODUCERS LIVESTOCK LOAN COMPANY, a Corporation, Appellant, v. IDAHO LIVESTOCK AUCTION, Inc., a Corporation, Appellee. No. 14754. United States Court of Appeals Ninth Circuit. Feb. 24, 1956. Hadlond P. Thomas, Thomas & Armstrong, Frank Armstrong, Edward M. Garrett, Salt Lake City, Utah, A. L. Merrill, Pocatello, Idaho, for appellant. Albaugh, Bloem, Barnard & Smith, Idaho Falls, Idaho, for appellee. Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal from a judgment of the United States District Court for the District of Idaho, Eastern Division, denying appellant recovery of damages for conversion of cattle on which it held a mortgage. Appellant contends that the District Court erred in construing a contract as discharging its cause of action here in issue. Appellant also contends that the evidence does not support the District Court's finding that by its conduct appellee waived its rights under the mortgage which prohibited sale of the cattle without its consent. The later contention we do not consider since we affirm the judgment that by contract appellant waived its rights to recover for the conversion. 2…

This is an appeal from a judgment of the United States District Court for the District of Idaho, Eastern Division, denying appellant recovery of damages for conversion of cattle on which it held a mortgage. Appellant contends that the District Court erred in construing a contract as discharging its cause of action here in issue. Appellant also contends that the evidence does not support the District Court's finding that by its conduct appellee waived its rights under the mortgage which prohibited sale of the cattle without its consent. The latter contention we do not consider since we affirm the judgment that by contract appellant waived its rights to recover for the conversion.

Appellant loaned one Galbraith large sums of money, taking mortgages on his cattle. The mortgages prohibited sale of the cattle without the appellant's permission. They were recorded in the county in which were the cattle and in the offices of Idaho's Secretary of State. Under the Idaho law, an agent of Galbraith has the same liability as Galbraith if he sold the cattle without the consent of the appellant mortgagee. Forbush v. San Diego Fruit & Produce Co., 46 Idaho 231 at page 245, 266 P. 659…

(concurring).

I am in agreement that the parol evidence was admissible. I think also that it was admissible wholly apart from whether the words “and other valuable consideration” were, or were not, inserted in the writing.

The most profitable way to approach the problem before us is to take that part of Mr. Wigmore’s § 2430 which appears on page 98 of Vol. IX and apply it to the situation shown in the record here. As Mr. Wigmore says: “The answer depends wholly upon the intent of the parties.” That intent must be sought “in the conduct and language of the parties and surrounding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover.”

The following circumstances are significant here:

1. This was not a case where the parties walked into a lawyer’s office, told him their problem and asked him to put their arrangements in writing. The written instrument here was drawn by the loan company and presented to the mortgagor on a “take it or leave it” basis. The latter had no opportunity to suggest any of its terms.

*896 2. The writing is completely unilateral in that it contains statements of what…