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UNITED STATES v. BARTHOLOMEW

January 31, 1956

UNITED STATES OF AMERICA, PLAINTIFF,
v.
W.H. BARTHOLOMEW AND ARGILE BARTHOLOMEW. DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, District Judge.

  On October 18, 1955, plaintiff filed its complaint against the defendants seeking judgment in the sum of $395.60.

In the complaint it is alleged that one Grover Jernigan borrowed from the United States, through the Administrator of the Farmers Home Administration, the sum of $5,455; that to evidence said loan the said Jernigan on August 28, 1952, executed and delivered a promissory note payable to the plaintiff for the sum so borrowed with interest at the rate of 5 percent per annum until paid; that said note was payable in installments, the last installment being due October 1, 1958, and the note further provided that upon default of payment of any installment, the entire indebtedness might be declared due and payable; that to secure the payment of said note the said Jernigan on January 22, 1953, executed, acknowledged, and delivered to the plaintiff a crop and chattel mortgage "on said cattle and implements therein described", said crop and chattel mortgage being filed for record the same day at 4:00 p.m., in Benton County, Arkansas, and being abstracted in Chattel Mortgage Record 39 at page 107 of said records.

There remains due on said note the principal sum of $4,653.12, and none of the chattels described in the mortgage remain in the hands of the said Jernigan. Paragraph numbered 5 of the complaint is as follows:

    "On August 11, 1953, said Grover Jernigan without
  the knowledge and consent of plaintiff sold 14
  animals, which were covered by the chattel mortgage
  heretofore described, for a net value of $395.60,
  which was a fair market value for said animals at
  that time, through the defendants doing business as
  Benton County Sales Company, and no part of said
  proceeds were applied on the note and chattel
  mortgage, the defendants thereby depriving the
  plaintiff of its security."

Summons was served on the defendants on November 11, 1955. In due time and on November 25, 1955, the defendants filed their answer, in which they admitted that they were citizens of Arkansas and residents of Washington County in said state, and that they were partners doing business as the Benton County Sales Company.

The defendants neither admitted nor denied paragraphs 2, 3, and 4 of the plaintiff's complaint, but alleged that they did not have sufficient information on which to base an allegation. The exact words employed by defendants are as follows:

    "2. Defendants neither admit nor deny paragraph 2
  of said complaint

  because they do not have sufficient information on
  which to base the allegation.
    "3. Defendants neither admit nor deny paragraph 3
  of said complaint for the reason given in paragraph 2
  of this answer.
    "4. Defendants neither admit nor deny paragraph 4
  of said complaint for the reason given in paragraph 2
  of this answer."

Defendants denied each and every allegation contained in paragraph 5 of the complaint.

On December 28, 1955, the plaintiff propounded an interrogatory to the defendant, W.H. Bartholomew, in the following words and figures:

    "1. Did the Benton County Sales Company keep a
  daily sales record on August 11, 1953? If so, attach
  a copy of the sales record for that date as pertains
  to Grover Jernigan, Route 1, Gentry, Arkansas."

There was no formal reply to the interrogatory but the attorney for the defendants delivered to the attorneys for plaintiff a copy of the sales record requested by plaintiff, which document was introduced in evidence by plaintiff and will be more fully referred to in the findings of fact.

Upon the issue joined the cause proceed to trial to the court on January 17, 1956, and at the conclusion of the introduction of evidence on the part of the plaintiff, the defendants moved for a dismissal on the ground that, upon the facts and the law, the plaintiff had shown no right to relief.

The motion was orally argued by the attorneys, and the Court stated that consideration would be given the motion at the conclusion of all of the evidence, whereupon the attorney for the defendants stated that defendants desired to stand on their motion. Thereupon the case was taken under consideration, and the Court, having considered the argument of the attorneys for the respective parties, together with the pleadings and documentary evidence introduced by plaintiff, now makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

No. 1

The plaintiff is the United States of America, and the defendants are citizens of Arkansas and reside in Washington County in said state.

No. 2

On August 28, 1952, one Grover Jernigan executed and delivered his promissory note for the principal sum of $5,455, payable to the order of the United States of America, acting through the Administrator of the Farmers Home Administration at the office of that Administration in Bentonville, Arkansas.

The note was payable in installments, the last of which would become due October 1, 1958.

Upon default in the payment of any installment of principal or interest, or upon breach by the maker of any of the provisions contained in the instrument securing the note, the holder at its option might declare the entire indebtedness to be due and payable.

The note shows the address of the maker as Route 1, Gentry, Arkansas (plaintiff's Exhibit 3).

No. 3

On January 22, 1953, Grover Jernigan of Route 1, Gentry, Arkansas, executed, acknowledged and delivered a crop and chattel mortgage to the plaintiff, acting through the Administrator of the Farmers Home Administration, to secure the payment of the promissory note described in Finding of Fact No. 2.

The mortgage provides:

    "The Mortgagor does hereby grant, bargain, sell,
  and convey unto the Mortgagee, the following crops or
  chattels all of which are located or to be located on
  the premises known as the Jernigan farm or ranch,
  located and situated approximately 1 mile in a
  Easterly direction

  from the town or city of Y City in the county of
  Benton, and State of Arkansas."

Then follows a listing and description of 16 cows, 1 bull calf, 3 heifer calves, and 65 ewes. The weights of the cows ...


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