Darr v. Brennan Cattle Co.

658 S.W.2d 906, 37 U.C.C. Rep. Serv. (West) 1409, 1983 Mo. App. LEXIS 3538
CourtMissouri Court of Appeals
DecidedSeptember 20, 1983
DocketNo. WD34006
StatusPublished
Cited by2 cases

This text of 658 S.W.2d 906 (Darr v. Brennan Cattle Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darr v. Brennan Cattle Co., 658 S.W.2d 906, 37 U.C.C. Rep. Serv. (West) 1409, 1983 Mo. App. LEXIS 3538 (Mo. Ct. App. 1983).

Opinion

WASSERSTROM, Presiding Judge.

The issue in this case is whether the security interest of First National Bank of Freeport, Illinois (“the Bank”) has priority over plaintiffs’ judgment lien. The trial court accorded priority to plaintiffs. We reverse.

On June 2, 1981, plaintiffs obtained judgment against Brennan Cattle Company (“Brennan”) for $65,000. Brennan appealed from that judgment without supersedeas bond, but subsequently voluntarily dismissed the appeal.

On June 4,1981, two days after the judgment in favor of plaintiffs, Brennan transferred 2,169 head of cattle to Kirkland Enterprises, Inc. (“Kirkland”) at a sale price of $824,476.56. Brennan and Kirkland are corporations both of which are controlled by the Brennan family. These corporations followed a general practice by which Brennan sold cattle to Kirkland at the beginning of the grazing season and Kirkland resold the cattle to Brennan at the end of the grazing season.

These two corporations have had a joint line of credit with the Bank since 1976. Since that time there has been a series of loans and a series of security interests on cattle given by each of the corporations to the Bank. Of special importance for purpose of this case is a security interest given by Brennan to the Bank on May 27, 1979, [908]*908and filed by the Bank with the recorder’s office of Sullivan County, Missouri, on June 1, 1979. That security interest covered a number of different items including livestock and the proceeds thereof “together with all property of a similar nature or kind to that therein described wich [sic] may be hereafter acquired by the Debtor.”

Concurrently with the sale of the cattle by Brennan to Kirkland on June 4, 1981, Kirkland executed a note to the Bank for $900,000 and also executed a security agreement and financing statement as collateral. The $900,000 note bears the following two notations: “This note also secured by a mortgage for 200,000 dated April 13, 1977” and “This note also secured by a note and mortgage dated May 25,1979 in the amount of $500,000 to Kirkland Enterprises Inc.”

The June 4, 1981 sale was reflected on the daily sales record of the Brennan books. The results of the loan transaction of that date were reflected on the Bank’s records by a credit to Brennan of $824,476.56 and a debit to Kirkland in the same amount. Pri- or to the June 4, 1981 transaction the Bank’s records showed a balance due by Brennan of $1,228,224.28; after the transaction, that balance was reduced to $403,-747.72.

In November 1981, 276 steers were shipped to M.B. & L. Commission Company for sale and were sold on November 12, 1981, for $112,600.89. On that same day plaintiffs ordered execution supported by garnishment against M.B. & L. and served interrogatories. M.B. & L. filed answers to the interrogatories to the effect that it held $112,600.89 for Brennan, and M.B. & L. paid $62,110.02 (covering the judgment, interest and costs) into the registry of the court.1

Kirkland and the Bank then each filed a motion to intervene, which were allowed. Both motions challenged the right of Brennan to the proceeds of the sale, and contended that the cattle had been owned by Kirkland and that Kirkland was entitled to the proceeds of sale. The Bank filed a formal denial of the M.B. & L. answer to interrogatories in which the Bank stated that the steers sold by M.B. & L. and the proceeds thereof were the property of Kirkland, not Brennan, and that the Bank held a prior perfected security interest to it from Kirkland covering the cattle and the proceeds. The Bank’s denial then went on to allege: “That even if said steers belonged to Brennan Cattle Company, Inc., they are subject to a security agreement, perfected by a UCC filing in Sullivan County, Missouri, a copy of each being attached hereto and made a part hereof.”

The trial court held a hearing at which all parties appeared and offered evidence. The court later made an order ruling in pertinent part as follows: “That neither interve-nor Kirkland Enterprises, Inc. or the First National Bank of Freeport, Illinois have any right, title or interest in and to the funds resulting from the garnishment that are now in the registry of this court.”

On this appeal, the Bank contends that the trial court erred in finding that it had no right, title or interest in the proceeds of the cattle sale, because regardless of the validity of the security interest which it received from Kirkland, it in any event had a good security interest from Brennan. The Bank points out that under Sec. 400.9-301(3)2 the plaintiffs’ lien took effect on November 12,1981, the date of the garnishment. On the other hand the Bank lien was perfected on June 1, 1979, and therefore is prior in time and right. The Bank also points out that its 1979 security interest covered not only property owned by Brennan at that time, but also after-acquired cattle. Also to be noted is that the security agreement dated May 25, 1979, covers future advances as permitted by Sec. 400.9-204(5).

[909]*909The only reasonable attack which could be made on the technical sufficiency of the Bank’s security interest would be that the financing statement dated May 27, 1979, and filed June 1, 1979, Exhibit I-FNB-Ex. 18, was not manually signed by the Bank as secured party. Although plaintiffs do not attack the security interest in its argument on that ground, Sec. 400.9-402 does require that the secured party sign the financing statement. However the deficiency of the financing statement in this regard has been cured by the typewritten designation of the Bank as the secured party and the Bank’s authentication of that designation by filing the financing statement. Benedict v. Lebowitz, 346 F.2d 120 (2d Cir.1965); Matter of Save-On-Carpets of Arizona, Inc., 545 F.2d 1239 (9th Cir.1976); Peoples Bank of Bartow County v. Northwest Ga. Bank, 139 Ga.App. 264, 228 S.E.2d 181 (1976); In re Horvath (D.C.Conn.1963), 1 UCC Reporting Service 624.

The trial court did not indicate the reason for its conclusion against the Bank, but plaintiffs by their argument suggest various grounds for affirmance. They argue in the first place that the Bank is estopped to assert any rights under the security interest given to it by Brennan or to rely on ownership of the collateral by Brennan, because of the Bank’s position at trial that Kirkland owned the cattle. Plaintiffs argue that by the allegations of the Bank’s motion to intervene and its testimony, it made judicial admissions that Brennan did not own the cattle after the sale of June 4, 1981, to Kirkland.

There was no such judicial admission. Plaintiffs’ claim was based on their proposition that Brennan owned the cattle before June 4, 1981, and continued to be the true owner of the cattle thereafter. Rather than “admitting” that proposition, the Bank denied it and for the first branch of its argument claimed that Kirkland became the owner on June 4, 1981.

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Cite This Page — Counsel Stack

Bluebook (online)
658 S.W.2d 906, 37 U.C.C. Rep. Serv. (West) 1409, 1983 Mo. App. LEXIS 3538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darr-v-brennan-cattle-co-moctapp-1983.