Monte Vista journal and Monte Vista graphic-reporter., 1923-07-27
Money From Sale OF MortgaySl
Sheep Wrongfully Appropriated

On July l6. 1928, Judge ]. Fos-
ter Symes of the United States
District Court, Denver, Colorado,
decided the case OF Smith & Rick.
er, Plaintiffs. OF Kansas City. Miss.
ouri. against Ralph w. Shellabar.
ger, The Means-Ashley Mercantile
Company. A. B. Slane and NJ. X.
Saline. all OF Saguache. Colorado, in
favor Of the Plaintiffs.
In the Spring of 1920 the firm
OF Smith & Kicker loaned the
Slanes ninety-hve hundred dollars
($9500.0O secured by Chattel
Mortgage on twelve hundred
t120O head OF sheep. In the fan
OF 1920 the Slanes sold the In
crease or lamb crop to w. C. Macy
and Sons OF Monte Vista, Colorado.
who paid the purchase price OF the
lambs to the Slanes.
While this money was in the
Bank at Saguache, Ralph w. She'll
abarger, acting for himself and for
The Means-Ashley Mercantile Com
pany OF Saguache. induced the
Slanes to pay the money proceeds
of the lambs to The Means-Ashley
Mercantile Company to apply on an
Indebtedness claimed to be due
from the Slanes to the Means-Ash-
ley Mercantile Company.
The Slanes refused to turn over
the money to Shellabarger and The
Means-Ashley Mercantile Company,
basing their refusal on the ground
that the lambs We're included in
the mortgage to Smith & Kicker
and that the money belonged to
Smith & Kicker.
After this interview, Shellabar-
ger claimed to have made an exam
ination OF the mortgage in the
Clerks office at Sagauche and
stated that he had examined the
mortgage and that 1t did not in
clude the increase or the lambs
In this he was mistaken. as the
printed form OF the mortgage in
cluded statement covering the in
crease. However. Shellabarger per-
suaded the Slanes that the mort
gage did not cover the Increase
and on these representations the
Slanes paid the money received
from Macy TO The Means-Ashley
Mercantile Company.
Judge Symes, in making his ind
ing. makes the following state
ment: "The facts show. as have
found them. that the defendant
Shellharger. acting for himself and
The Means-Ashley Mercantile Com
pany, upon learning of the unauth-
orized sale, took a very active part, |
and aided and abetted the Slanes
In all acts done in violation OF the
rights OF the plaintiffs. Knowing
that the Slanes had deposited the |
proceeds In the bank. and with 1
knowledge of the plaintiffs mort |
gage he not only demanded pay
ment out OF their fund. but per-
sisted therein even after being in
formed by the Slancs that they |
were holding It In effect as trustee
for the plaintiffs. Shellabarger
stated to the Slanes as a fact, tina,
he had read the plaintiffs mort
gage; that Il did not cover the In.
crease. and that therefore the
slanes had right to sell the lambs. |
and dispose OF the proceeds as they
might wish. without violating any
rights OF the plaintiffs. This state
ment OF fact was false. ms Shelln. |
barger afterwards found out and |
admitted. lie also knew before he |
received the payment that the
PlaintifsG had learned OF tho unau-
thorized sale, and were demanding
payment. I think Il Is clearly es-
tablished, therefore. that except for
tho activity and persistence o'
ShellabarFcr. and his erroneous re-
presentations respecting the terms
or the mortgage, rnat tho Slancs |
would mover have made the pay.
mont to him OF money which In
equity and good conscience belong
ed TO the piaiutiTa."