Horse of a Different Color (14 page)

Harry and I stayed outside, but after Bob had talked a minute or two he rapped on the window and motioned for me to come in. From the look on his face I knew he’d found a rainbow—one with a pot of gold at each end. “The tenant on the Webking place died last night,” he told me when I went in, “and that’s the best half-section of corn land anywheres around Junction. Marguerite’s folks have been to see Miz Webking, and shell leave me have the place for the rest of the year if I can come right away. The corn’s all planted, and she’ll give me a third of the crop for farming and shucking it.”

“Take it,” I told him. “It will be too late to plant corn here when the land dries, and you could never make as much on cattle shipping as on a deal like that. Besides, I don’t think this house will be fit for Marguerite to live in again. The only thing I’m not sure about is whether or not Mr. Noble will need you here for the trial.”

It took three or four more phone calls, but before the evening was over everything had been arranged. Bob had a lease on the Junction City place for the remainder of the year, with a promise of renewal if he’d done a good job. We’d ordered an emigrant car into Oberlin for shipment of his horses, cows, and furniture. It would be shipped on June ninth, and he would follow in the Buick after testifying on the tenth.

15

Three Little Pigs

T
HE
Banking Commission had two lawyers when my case came to trial on June 10. One was an Oberlin man, and the other a tricky Topeka attorney who did all the cross-examining. The first witness called was the cashier who came to the Cedar Bluffs bank when the new management took over. The Oberlin lawyer had him identify some of the bank’s books and records, and testify from them for half an hour. Among other things he testified that I had written nearly all the checks when Bob and I bought stock or feed, but that the amounts had often been charged equally to Bob’s loan account and mine. He also testified that proceeds of our sales had been credited to us in exactly equal amounts.

As his final witnesses, the lawyer called several farmers from whom we’d bought stock. I don’t believe any of them realized what the trial was about, and they all seemed embarrassed, but each one testified that he understood he was selling to a partnership and had heard Bob call me partner.

When the prosecution rested its case Mr. Noble told me there hadn’t been a shred of damaging evidence produced. He said that Bones’s testimony would nullify any implications by the cashier, and that it was customary in the West for one man to call another partner as a common term of address.

So that Bob could get away as early as possible, Mr. Noble called him as our first witness. He testified only a few minutes—just long enough to state under oath that he and I had never been partners, but that each had owned half the livestock and feed, which could have been separated at any time. Bob admitted that he’d called me partner, but said he’d called hundreds of other men by the same name. The Topeka lawyer didn’t even bother to cross-examine him, and we had only a chance to nod good-bye before he left for Junction City. The rest of the forenoon was taken up by neighbors and farmers from whom we’d bought, testifying that Bones, Bob, or I had told them we were not in partnership though we fed stock together.

Bones was our first witness in the afternoon, and a good one, talking more as though he were telling a story than testifying at a trial. He recited, almost word for word, the conversations he and I had in early December, 1919—my refusing to go into partnership with Bob but agreeing to feed stock with him if some way could be found for doing it as individuals. He explained the method we’d worked out, and testified that he’d told me, “If the chattels can be separated at any time, so that each man can stand alone with his property and obligations, I don’t see how there’d be a partnership. If you and Bob will team up that way I’ll make you separate loans and guarantee not to hold one of you responsible for a dollar of the other’s debts.”

Mr. Noble presented my original note to the justice of the peace for identification, then passed it to Bones and said, “I hand you a promissory note dated December 16, 1919, upon the face of which is endorsed, ‘I hereby guarantee not to hold Ralph Moody liable for any debt which he has not personally contracted. Harry S. Kennedy.’ Please state whether or not the signature is yours, and if the endorsement had been made at the time the note was signed by the defendant.”

Bones looked up at the justice and said, “The signature is mine, and the endorsement was on the note at the time it was signed by the defendant.”

“On subsequent loans to the defendant, was the same or a similar guarantee endorsed upon the notes?” Mr. Noble asked.

“Not to my recollection,” Bones testified, “but the same guarantee was nevertheless a part of the loan agreement.”

For the next half hour Mr. Noble had Bones testify as to dates and amounts from the bank’s books. I think it was mainly to establish that Bob was in debt more than twelve thousand dollars in excess of his assets at the time we started feeding stock together.

On cross-examination the Topeka lawyer had Bones repeat three different times that Bob’s debt to the bank after our second shipment was only eight thousand dollars. He asked the justice for the note that had been placed in evidence, then paced slowly back and forth, appearing to study it intently. After a minute or two he stopped in front of Bones, passed him the note, and asked if the signature under the guarantee was his. When Bones answered that it was, the lawyer told him, “Please state the name of the payee on the instrument you are holding.”

Bones looked up, scowled a bit in irritation, and replied, “The First State Bank of Cedar Bluffs, Kansas.”

“Then the endorsement is your personal guarantee, not that of the lender. Is that correct, Mr. Kennedy?” the lawyer said as he reached for the note.

Bones flared, “When that loan was made I was virtually the sole owner of . . . ”

“Answer yes or no,” the lawyer broke in suavely.

Bones looked as though he were on the verge of exploding when he grated out, “Yes.”

“That is all,” the attorney said with an inflection of finality.

George Miner followed Bones, and Mr. Noble had him testify as to the value at which he had appraised Bob’s feed and hogs at the time I bought half of them—evidently to again establish that Bob had then been deep in debt. In closing, he had George tell of meetings between Bones, Bob, and me at which he had been present, of agreements we’d made in his hearing, and that we had all told him no partnership existed.

The Topeka lawyer didn’t cross-examine George more than five minutes. He asked a few questions about dates of meetings, where they were held, what had been said, and who had said it. When George had answered all the questions the lawyer began pacing slowly, and said, “Now if I remember correctly, there were three separate feeding operations; the first commencing in December, 1919, the second in April, 1920, and the third in September, 1920. Is that correct, Mr. Miner?”

“That’s right,” George answered.

Still pacing, the attorney asked, “Now these meetings that you attended, they were all held prior to the first feeding venture or during its very early stages, were they not?”

George thought a moment, and again answered, “That’s right.”

The lawyer stopped directly opposite him, stuck both hands into his pockets, and asked slowly, “Since September first of last year has anyone told you, Mr. Miner, that no partnership existed between the defendant and Robert Wilson?”

George said hesitantly, “Well, I don’t recollect anybody tellin’ me in just so many words, but . . . ”

“That is all,” the attorney broke in, then walked away.

I was my last witness—and my worst one.

Mr. Noble put my account books for the trading, shipping, and feeding business into evidence. Then he had me testify from them more than an hour, showing that each business had been operated independently, and that in the feeding business Bob’s assets, liabilities, profits, and losses had been recorded entirely separate from mine. To prove that the bank officials were thoroughly aware that no partnership existed, Mr. Noble entered in evidence all the agreements and bills of sale in connection with shipping bank livestock—every one of them made out in my name alone. Before completing my testimony, he had me identify each document, then turned me over to the Topeka attorney for cross-examination. It lasted about two minutes.

After pacing back and forth a few times, he stopped in front of me and said, “Now you have testified repeatedly that you and Mr. Wilson each owned a distinct half of the livestock in question and a distinct half of the feed, though I understand that the livestock was generally kept in a single enclosure. How many times were the halves physically separated?”

“We had agreed on a method by which they could have been separated at any time,” I said, “but . . . ”

“Answer the question I asked you!” he said coldly.

“None,” I answered. “There was never any reason for it.”

He shoved both hands into his pockets, faced me a minute without speaking, then asked, “How many cattle have been lost by death since you and Wilson began feeding stock together?”

“None,” I answered.

“How many hogs?”

“No hogs,” I replied, “but we lost three small pigs from the last lot of stock we fed.”

“Were they yours or Wilson’s?” he asked.

I knew what he was up to instantly, but there was only one answer I could make: “They belonged to us jointly, since no division had been made at that time.”

He strode back to the counsel table, saying, “That is all.”

It was, too.

The justice ruled that Bob and I had been “de facto” partners in our third livestock feeding venture, but not in the first two or in the trading and shipping businesses, and that I owed the bank $13,136 plus interest from January 4, 1921.

Bones was irate at the ruling though he stood to gain by it. He was still a stockholder in the defunct bank, and so large a recovery would substantially reduce his loss. Mr. Frickey had attended the trial, and was among the first to come up after the judgment was rendered. He said he was surprised and shocked by it, and suggested that Mr. Noble, Bones, and I come to his office where we could discuss the matter in private. We were no sooner in the office than Bones insisted that an appeal must be filed immediately, but Mr. Noble didn’t agree with him. He said an appeal would be a drawn out and expensive matter, and in the light of some of the evidence, particularly that regarding the three pigs, he doubted that a reversal could be obtained. Instead of appealing, he recommended that I file a petition in bankruptcy immediately.

As soon as Mr. Noble had finished I told the group, “I have rent to the end of the year paid in advance, thirty-nine fine milch cows, and a little more than thirty-six hundred dollars in the bank. If I could work out a deal with the receiver to let me stay on the place, and not to attach my bank account, I’d much rather pay off the judgment than take bankruptcy. Except for a bad loss when the hog market broke so sharply last October, I’ve been able to do fairly well as a livestock dealer. If I’m left enough capital to carry on the business unhampered, and if I’m not eaten up with interest, I think I could pay that thirteen thousand off in a couple of years. But if I’m stripped right down to the hide, and interest is piling up at the rate of ten per cent, taking bankruptcy would seem the only sensible thing to do.”

Then I looked around at Mr. Frickey and added, “. . . unless the Farmers National Bank makes loans to paupers.”

I intended it as a joke, but Mr. Frickey asked seriously, “How much working capital would you require to carry on your livestock dealing business unhampered?”

“Three thousand dollars,” I told him.

“Could you handle six per cent interest on the judgment?” “Yes, sir, if I had a three-thousand-dollar working fund.”

Mr. Frickey looked toward Mr. Noble and said, “You’ve had some dealings with the receiver of that bank and found him a rather reasonable man, haven’t you, Jake?”

“Just and reasonable,” Mr. Noble answered.

“I presume he’s still in town,” Mr. Frickey said. “Let’s see if we can get him over here to discuss this matter.”

Then he told me, “Bankers can sometimes work these matters out better among themselves. We’ll try to have a talk with the receiver, and will get in touch with you through the Cedar Bluffs telephone exchange when there’s anything to report.”

When I left the bank I intended going straight home, but news of the judgment had spread, and so many people stopped me on the street that it was an hour before I got out of Oberlin. Until those people told me how badly I’d been wronged I hadn’t thought about being sorry for myself. But I made up for it on the way back to Cedar Bluffs, and was still enjoying my sorrow when Effie called from the door of her office, “Good lands! Where have you been for the last hour? I’ve like to wore out every line in the township trying to run you down. Bones wants you over to his house as quick as ever you can get there.”

Bones showed me into his parlor, where the receiver for the Cedar Bluffs bank was waiting. He rose, and as Bones introduced us he put out his hand to shake, saying, “I don’t believe we’re going to have much trouble doing business together, but your friends have been giving me a rough time this afternoon. Sit down, and let’s talk things over.”

Within five minutes I knew exactly where I stood with him and the defunct bank, and I liked it. Half an hour later we’d agreed that I would sell my milch cows as soon as practicable and turn the entire receipts over to apply against the judgment. I’d turn over at once all cash in excess of three thousand dollars, and could keep a working fund of that amount in cash or other assets. At the end of each month I was to turn over to the receiver my net earnings, less living expenses. In exchange, interest on the unpaid balance would be 6 per cent, I would continue in possession of the place, and there would be no attachments or interference of any kind in my affairs.

When I left Bones Kennedy’s house I couldn’t have felt sorry for myself if I’d tried to, and was anxious to put my place back in condition for handling stock as quickly as possible. I drove around to Simons’s corral, tossed my saddle and what few clothes I had into the back of the Maxwell, tied Kitten to a door handle, and set out for home. As we passed the telephone office, Effie again called to me, and that time she demanded that I stop and come in. She’d not only found out that I’d lost the case but about the Topeka lawyer trapping Bones, George, and me with catch questions. She was furious, and after storming that the trial had been an outrage to justice from beginning to end, she told me, “I’m going to phone that justice of the peace right now and give him a piece of my mind.”

“Don’t do it,” I told her; “the fault is mine, not his. I got careless after the big profit Bob and I made on the second lot of stock we fed, and maybe we did come pretty close to partnership on the last one. Anyway, it was close enough that Mr. Noble says there would be little chance of winning a reversal if the case were appealed.”

After telling her about my meeting with the receiver and the agreement we’d reached, I said, “You know who has each of those milch cows, Effie. It would be a big help if you’d call up and tell them I’m sorry, but that I’ll have to have the cows back tomorrow morning. And I’d appreciate it if you’d put out line calls saying that I’ll put all thirty-nine cows, along with any calves they’ve had, up for auction in the afternoon. Tell the folks, will you, that because of the flood there won’t be any barbecue at the auction.”