Bank of Tehama County v. Federal Realty Co.

This action was instituted by the Bank of Tehama County to recover $1100 placed in escrow with the Bank of Willows for the purpose of securing the release of a band of sheep, held by the defendant, Federal Realty Company, under claim of an agistor’s lien, and upon which the plaintiff bank holds a chattel mortgage. It is expressly stated in the letter from the plaintiff to the Bank of Willows, which contains the agreement of the parties and the escrow instructions, and which is attached to the complaint as “Exhibit B”, that “the said deposit of $1,100 is to be held by your Bank as in lieu of the possession and claim of possession of said Federal Realty Company” until final determination of the controversy. The First National Bank of Willows, substituted as the escrow holder after the liquidation of the Bank of Willows, filed a waiver of its right to appear in the action and its consent to be bound, as to the impounded sum, by any judgment entered therein. The Federal Realty Company filed its answer and cross-complaint asking for the delivery to it of the escrowed money, and from a judgment in favor of the defendant the Bank of Tehama County has taken this appeal. The validity of the appellant’s chattel mortgage upon the sheep in question is admitted by the respondent in its brief and, on page 5 of its opening brief, appellant makes the following concession: “We are willing to admit, and do hereby admit that if Defendant Federal Realty Company indeed had a valid Agistor’s lien at and during the time these Sheep were pastured upon its lands, then such and said Lien did take precedence over the said Chattel Mortgage of Plaintiff.”

It is the contention of appellant that this finding as to the possession of Moutrey for the defendant Federal

The testimony of Moutrey, Fraga and one Z. P. Dyer, outside man for the bank, shows, without substantial contradiction, that Fraga and Moutrey made this arrangement with respect to all the lands under Moutrey’s supervision; that, when the sheep were first moved onto the lands near Chico, Moutrey asked Fraga whether he wanted to rent the land by the acre or pasture by the head and Fraga chose the latter; that when this feed gave out Fraga asked Moutrey whether he had any more; moved his sheep to other land in Glenn County on December 5th, and, on December 13th, moved onto the Federal Realty Company land in Glenn County; that the sheep were always herded and cared for by Fraga himself or herders employed by him; that this was in accordance with the pasturage agreement; that Moutrey always told Fraga where to pasture or to move the sheep, although he never counted them or cared for them himself or through his own employees. Fraga testified that he never moved the sheep without first getting Moutrey’s permission, although on one occasion he had sold twenty-six lambs without informing him, but that he paid no pasturage charge for lambs; that payments were made for the pasturage he received as he left the lands, although he still owed some money on the first piece of defendant’s land at the time he moved to the second, but that pasturage he paid as soon as he sold some wethers, taking his sheep to a public corral for the purpose, all with the consent of Moutrey. Fraga testified, with respect to the pasturage, the claim for which is now under examination, that he notified Moutrey he was going to move to summer pasture and they figured up the pasturage to the day he was going to leave and Fraga wrote him a check which was dishonored; that he, Fraga, got his camp and the sheep ready to move be

Appellant quotes in its brief many definitions of “agistment” and “agistor”. In Williams v. Miller, 68 Cal. 290 , 293 [ 9 Pac. 166 , 168], this court said: “Webster defines the word ‘agist’ to mean ‘to take to graze or pasture at a certain sum’ and ‘agistment’ as ‘the taking and feeding other men’s cattle in the king’s forest, or on one’s own land, at a certain rate’.” The provision that Fraga was to do his own herding does not prevent this from being a contract of agistment. (Williams v. Miller, supra.) That it was such a contract rather than a lease of land seems clear from the fact that Moutrey could have pastured other sheep there too, that he directed the route to be taken in moving the sheep and always indicated the places they should be pastured and that Fraga never moved the sheep or changed their pasture without getting Moutrey’s consent. The trial judge was justified in concluding from the evidence that the possession and control was in the defendant, through its agent Moutrey, despite the fact that under the contract of agistment, the owner of the sheep was obligated to take upon himself their actual care, such as herding, watering and salting. Appellant places great reliance upon the case of Howard v. Throckmorton, 59 Cal. 79 , where it was held that the contract was a lease rather than an agistment, although pasture was paid for by the head and the defendant undertook some duties with respect to the stock and maintenance of fences. The owners of herds, which were dairy cattle, rented small houses, corrals and portions of the lands, which they used as dairies. That the two eases are distinguishable on their facts appears from the following finding of the court in the Howard case: “The defend

The judgment is affirmed.

Langdon, J., Curtis, J., Shenk, J., Seawell, J., Preston, J., and Waste, C. J., concurred.