Full opinion text
DELEHANT, District Judge (serving by assignment). Plaintiff, as designated trustee, instituted this action against defendant, Hartford Accident and Indemnity Company, a corporation, as the surety, on a bond given by Vernon F. Kuhlmann, doing business as Deshler Sales Company, of Deshler, Nebraska, as principal, in pursuance of the Packers and Stockyards Act of 1921, as amended, Title 7 U.S.C.A. § 201 et seq., to recover, for the use and benefit of the persons severally entitled thereto, the penal sum of the bond, namely $52,000, “together with interest thereon and a reasonable attorneys fee.” Included, also, as defendants, when the case was started, were all of the other defendants above named, except Arthur Peterson, Melvin Sehnegelberger, Vernon F. Kuhlmann and Wilma Kuhlmann, all of whom were brought into the action after its institution. Apart from the defendants, Vernon F. Kuhlmann and Wilma Kuhlmann, all defendants, other than Hartford Accident and Indemnity Company, were included as persons considered probably or possibly to hold beneficial rights under the bond sued upon. Defendant, Hartford Accident and Indemnity Company, in its answer to the complaint, admitted its own corporate existence and its joinder in the execution of the bond in suit; but must be understood to have denied all other allegations of the complaint, and thus to have denied the alleged breach by the principal, Vernon F. Kuhlmann, doing business as Deshler Sales Company, of Deshler, Nebraska, of the conditions of the bond, demand by plaintiff for performance made upon the principal obligor in the bond, and damages within the coverage of the bond sustained by its own codefendants or any of them, or by other persons. Of the defendants allegedly entitled to share beneficially in any recovery under the bond, the greater number served and filed answers and cross claims, or other pleadings setting up their respective claims; to which defendant, Hartford Accident and Indemnity Company served and filed responsive pleadings. But others allowed their respective positions to be presented by the plaintiff trustee. With two significant reservations, trial of the issues presented by the pleadings has been had before the court without a jury. Those reservations are now identified. Floyd E. Boyer, one of the defendants, served and filed an answer and cross-complaint in which, adopting plaintiff’s allegations touching the execution and terms of, and breach under, the bond, he denied such of the averments of the pleadings of some eleven of his claimant codefendants as were not admissions of facts pleaded in the complaint, and then set out in his own behalf a claim, allegedly within the coverage of the bond, in the sum of $22,499.71, with interest and costs, and demanded a trial by jury. Upon the trial to the court, the claim of defendant, Floyd E. Boyer, was not presented. It remains for trial hereafter, presumably before the court with a jury. Presently untried also are the issues made by the pleadings between the defendant and third-party plaintiff, Hartford Accident and Indemnity Company, and the third-party defendants, Vernon F. Kuhlmann and Wilma Kuhlmann. By way of the interception of unnecessary repetition, and in anticipation of the court’s early extensive factual recital and statement of its legal conclusions, it is observed that the court considers it unnecessary at this point, more thoroughly and in detail, to set out the issues made in the pleadings between the contending parties. This is true particularly in view of the failure of the pleadings themselves precisely to pinpoint the exact controversies between the parties. It is first mentioned that upon the trial the default of the defendant, Ed Baxa, was taken and entered. Judgment is, therefore, entered barring both him and the plaintiff, in his behalf, from any right of recovery under the bond. Secondly, at the threshold of the trial, a stipulation was entered into where-under the defendant, Hartford Accident and Indemnity Company acknowledged the coverage under its bond of the following claims: Name of Claimant Date when claim arose Amount Net Balance a) Louis Reinke June 10, 1952 $347.88 Less bankruptcy dividend November 17, 1955 71.54 $ 276.34 b) Melvin Schnegelberger June 10, 1952 $240.57 Less bankruptcy dividend November 17,1955 49.47 5 191.10 c) Otto Kuhlmann June 10, 1952 $261.98 Less bankruptcy dividend November 17, 1955 53.88 $ 208.10 d) Monte J. Harms June 10, 1952 $462.43 Dividend None $462.43 e) Arthur Peterson June 10, 1952 $564.49 Dividend None $ 564.49 f) Adolph Aden May 6, 1952 $644.72 Less bankruptcy dividend November 17, 1955 132.60 $ 512.12 g) Norris Schardt June 10, 1952 $349.52 Less bankruptcy dividend November 17, 1955 71.88 $ 277.64 h) James Bailey June 3, 1952 $284.49 Less bankruptcy dividend November 17, 1955 58.50 $ 225.99 i) Earl Werner June 3, 1952 $ 43.95 Dividend None $ 43.95 j) Herman H. Thurnau April 22, 1952 $ 74.17 Less Bankruptcy dividend November 17, 1955 15.25 $ 58.92 Total $2,821.08 That stipulation, being allowed, is accepted as finally establishing the right of those ten claimant defendants to the coverage of their several claims under the bond upon which the suit is brought, and also the several amounts for which such coverage is effective. But the stipulation reserved for proof the availability to the plaintiff, or to the several other individual claimants in whose right he sues, of protection under the bond, in behalf of each of the other claimants. Upon that disputed coverage the trial proceeded. And the sufficiency of such proof is the principal subject matter of the remainder of this memorandum, which will now proceed first to the announcement of the court’s findings of fact. Deshler and Davenport are villages in Thayer County, Nebraska, which is part of an area devoted largely to farming and to the raising and feeding and marketing of livestock. In each of these villages a bank is located. The one at Deshler is Nebraska Security Bank. It will sometimes be referred to herein as the Deshler bank. At all times material in the case, Vernon F. Kuhlmann was a resident of Deshler. He was also known as Vern Kuhlmann and as Vern F. Kuhlmann, and his surname was occasionally spelled as “Kuhlman.” By training he was an auctioneer, who had come to specialize in the auction selling of livestock. He was a mature man, and in the prime period of his life. He was and is a person of reasonable, but not extensive, education and of a fairly active business experience in the territory roughly comprising south central Nebraska and north central Kansas. On a date not precisely established, but shown probably to have been in 1942, Vernon F. Kuhlmann entered into a partnership arrangement with a man named Waring (not to be confused with Mr. Robert B. Waring, of counsel in the present action). No written articles of partnership relating to that association are before the court; and the arrangement between Waring and Vernon F. Kuhlmann seems to have been an oral one. In pursuance of it, the partnership embarked under the name or style of “Deshler Sales Company,” on a business which included the purchase and sale of livestock, and the auction sale for others on commission of livestock. The principal place of the partnership’s business and the site of its livestock auctions were a sale barn at Deshler known as “Deshler Sale Barn” or “Deshler Sales Barn.” That barn was erected through organized local community action at about the time of the establishment of the partnership, upon an understanding, not fully or adequately reflected in the present record, that its cost should be repaid to its builders from the proceeds of its use, and that, on such repayment, the barn should become the property of Waring, or possibly, though it does not thus clearly appear, of the members of the partnership. The partnership so formed entered into business and continued to function until some time in 1944, when Vernon F. Kuhlmann purchased the interest in it of Waring, and succeeded to the sole ownership of its business. He then operated that business alone until some time in 1945 or 1946, when he and one Herb Brettman organized a partnership for such operation. That partnership persisted for only about a year, and was dissolved no later than some time in 1947. Upon such dissolution, Vernon F. Kuhlmann resumed the sole ownership and control of the business. And he persisted in that ownership and control continuously thereafter through all of the occurrences giving rise to the controversies now in litigation. Throughout the recited changes in its ownership, and thereafter through the month of June, 1952, the name of its business continued to be “Deshler Sales Company.” After the termination, not later than 1947, of his partnership with Brettman and continuing through the times of the occurrences giving rise to the claims in suit, Vernon F. Kuhlmann, as sole owner and proprieter, conducted a business at Deshler, with headquarters at the Deshler Sale Barn. In it, he operated under the name of, and did business as, Deshler Sales Company. That business included (a) the sale upon commission of the livestock of other persons, largely through auction sales conducted regularly in the sale ring at the Deshler Sale Barn; and (b) the purchase and sale of livestock as a business venture in itself, and for the sole use and benefit and at the risk of Vernon F. Kuhlmann. His purchases of livestock were made variously at the Deshler Sale Barn, at sales barns in other communities within traveling reach from Deshler, and on farms where the livestock happened to be. His sales of purchased livestock were made both at auctions held at Deshler Sale Barn, and at various livestock markets, especially those at Lincoln and Omaha in Nebraska. And he sometimes sold livestock so purchased by him through his sale barn at Davenport (concerning which sale barn, see later findings herein). Osborne Livestock Commission Company, a partnership, operates and at all times material herein has operated at Osborne, Kansas, a public stockyard and market agency at a livestock sale barn in such city. That stockyard was posted under the Packers and Stockyards Act, 1921, under date of April 24,1950, and at all times material herein was a posted public stockyard and registered market agency under the Packers and Stockyards Act, 1921. At all times material herein, Osborne Livestock Commission Company was a partnership composed of R. W. Dudley, Ransom L. Enoch and D. A. Timbers, all of Osborne, Kansas. A stockyard operated at Salina, Kansas, under the name of Salina Sales Pavilion, as a public stockyard and market agency at a livestock sale bam in such city was posted under the Packers and Stockyards Act, 1921, under date of July 14, 1934, and at all times material herein was a posted public stockyard and registered market agency under the Packers and Stockyards Act, 1921, and actually operated as such public stockyard and registered market agency. While Salina Sales Pavilion, subsequent to its posting, had undergone some changes in ownership, it was, in May and June, 1952, a partnership composed of A. R. Wilson, Preston Simpson, and Lon Wilson, Jr., all of Salina, Kansas. A stockyard operated at Salina, Kansas, under the name of Beverly Sales Company, as a public stockyard and market agency, at a livestock sale barn in such city, was posted under the Packers and Stockyards Act, 1921 under date of January 21, 1936, and at all times material herein was a posted public stockyard and registered market agency under the Packers and Stockyards Act, 1921, and actually operated as such public stockyard and registered market agency. While Beverly Sales Company, subsequent to its posting, had undergone some changes in ownership, it was in June 1952 a partnership composed of Jack Beverly, Maybelle Beverly, and Jack Beverly, Jr., all of Salina, Kansas. Cloud County Livestock Commission Company, a partnership, operates, and at all times material herein has operated, at Concordia, Kansas, a public stockyard and market agency at a livestock sale barn in such city. At all times material herein, that stockyard was a posted public stockyard and registered market agency under the Packers and Stockyards Act, 1921, and was owned and operated by a partnership under the name of Cloud County Livestock Commission Company, consisting of Harold E. Liby of Glaseo, Kansas, and Joe Shoots, whose place of residence is not clearly shown by the evidence. The detailed history of its posting and registration under the Packers and Stockyards Act, 1921, was not made a matter of evidence upon the trial, but such posting and registration were explicitly agreed to have occurred and are now factually found. On August 18,1950, after examination and measurement of the stockyard of Deshler Sales Company, as contemplated by Title 7 U.S.C.A. § 202 (see footnote), public notice as required by such section was posted in its stockyard and given to Vernon F. Kuhlmann, doing business as Deshler Sales Company, as its owner, Of such notice, the following is a true copy: “Form 1-d (Revised) “United States Department of Agriculture “Production and Marketing Administration “Livestock Branch “Washington 25, D. C. “Date JUL14 1950 “Notice “Mr. Vern F. Kuhlmann d/b/a “To Deshler Sales Company Stockyard owner. “At Deshler State Nebraska “Notice Is Hereby Given that after inquiry, as provided by Section 302(b) of the Packers and Stockyards Act, 1921 (7 U.S. C.[A.] Sec. 202(b)), it has been ascertained by me that the stockyard known as the Deshler Sales Company at Deshler State of Nebraska is subject to the provisions of said Act. “The attention of stockyard owners, market agencies, dealers, and other persons concerned is directed to Sections 303 and 306 (7 U.S.C.[A.] Sees. 203 and 207) and other pertinent provisions of said Act and the rules and regulations issued thereunder by the Secretary of Agriculture. “/s/ F. W. ImMasche “Acting Director, Livestock Branch “The foregoing notice is a true copy of the original notice given the stockyard owners concerned. “/s/ F. W. ImMasche “Acting Director, Livestock Branch” (Signatures only doubtfully legible.) On August 18, 1950, therefore, on the same date on which the foregoing notice was posted and given, Deshler Sales Company, Deshler, Nebraska, Vernon F. Kuhlmann as owner, addressed to U.S. Department of Agriculture, on departmentally approved forms, two separate applications for registration under the Packers and Stockyards Act, 1921. In one of these applications, request was made for registration, (a) as a “market agency” for “selling on commission,” (b) as a “dealer” for “buying and selling,” and (c) in the classification of “other service,” for the performance of “stockyards service,” all in respect of cattle, sheep, goats, swine, horses, and mules; the applicant was identified as an individual; and the stockyard on which the applicant would operate was designated as “Deshler Sales Company Stockyards, Deshler, Nebraska.” Under this application, the applicant was registered, with certificate dated September 20,-1950, as a “market agency and dealer.” In the other of these two applications, request was made for registration only as a “dealer” to engage in “buying and selling” cattle, sheep, goats, swine, horses and mules, in the way of an operation as an individual (as distinguished from a partnership, association or corporation) at stockyards, undesignated as to their operators, located as follows: At Osborne, Salina (two in number), Superior and Hebron, and at the stockyards of “Webb Livestock Comm. Company, Grand Island,” and “McCook Livestock Exchange, McCook.” The first two of these cities are in Kansas. All of the others are in Nebraska. This application declared that the applicant was already registered under the Act “as market agency and dealer at Deshler, Nebraska, operating stockyards,” evidently on the assumption that the then concurrent application for that registration just noted would be, and should be treated as, granted. Under the application in this paragraph described, the applicant was registered, with certificate dated September 20,1950 only as a “dealer,” at the several stockyards for which such authority had been sought in the application. It is also noted at this point as a fact that even before the foregoing posting of the Deshler Sales Barn, and pursuant to an application dated December 8, 1948, Vernon F. Kuhlmann, doing business as Deshler Sales Company, under certificate dated February 14, 1949, was, and thereafter had continued to be, registered as a “dealer” for “buying and selling” cattle, sheep, goats, swine, horses and mules at two unidentified stockyards at each of the cities of -Benkleman, Grand Island and North Platte, and one stockyard at each of Danbury, Superior, York, and Alliance, all in Nebraska. However, the evidence indicates that this authority became inactive from and after April 5, 1950, presumably except to the extent that it was reactivated in respect of stockyards at Grand Island and Superior by virtue of the application and registration discussed in the last previous paragraph hereof. Under authority of the Packers and Stockyards Act, 1921, (see footnote) Vernon F. Kuhlmann, doing business as Deshler Sales Company, as principal, and defendant, Hartford Accident and Indemnity Company, as surety, on August 31, 1951 executed a general livestock bond, which was thereafter timely filed under the Act, in which the beneficiary was designated as “W. O. Baldwin, Trustee of Hebron, Nebraska, (or his successor in official position, if any) as Trustee for all persons who may be damaged through the breach of this bond.” It is upon that bond that this suit is brought. Quotation is now made of several material portions, though not all, of such bond: “Hartford Accident and Indemnity Company “Hartford, Connecticut “Executed in Duplicate “A Stock Company “General Live Stock Bond “Know All Men By These Presents, that we Vernon F. Kuhlmann d/b/a Deshler Sales Company of Deshler, Nebraska, as Principal, and Hartford Accident and Indemnity Company of Hartford, Connecticut, as Surety, are held and firmly bound unto W. O. Baldwin, Trustee of Hebron, Nebraska (or his successor m official position, if any) as Trustee for all persons who may be damaged through the breach of this‘bond, as Obligee, in the sum of.......................... ............ Fifty-Two Thousand and No/100____ Dollars ($52,000.00), lawful money of the United States of America, for the payment whereof to the Obligee we bind ourselves, our heirs, executors, administrators, successors and assigns jointly and severally by these presents. ***** “Now, Therefore, The Condition Of This Bond is such that: Applicable if Principal sells on commission (1) If the said Principal shall safely keep and faithfully and promptly account for and pay to the owners or their duly authorized agents the proceeds of sales of all live stock received for sale on a commission basis by the said Principal at a public stockyards, as defined in the Act of Congress known as the Packers and Stockyards Act, 1921, as amended; Applicable if Principal is Dealer (Trader, Buyer, Packer, or abbattoir) (3) If the said Principal shall pay, when due, to the person or persons entitled thereto the purchase price for all livestock purchased by said Principal at a public stockyards, as defined in the Act of Congress known as the Packers and Stockyards Act, 1921, as amended; ***** “(b) The liability of the Surety under this bond shall not exceed Fifty-Two Thousand And No/100 Dollars ($52,-000.00), and when the Surety shall have paid that amount whether in one payment or the aggregate of several payments for, upon or by reason of one or several breaches of any condition hereof, the liability of the Surety shall immediately cease and determine. “(c) Any person damaged by the breach of any condition hereof may maintain an action on this bond in his own name, to recover his damages, after giving written notice to the Trustee herein; or the Trustee herein may maintain an action in his own name, the recovery to be made for the use of the persons damaged, and both Principal and Surety herein hereby waive every defense, if any there might be, based upon the fact that any person damaged or in whose name the suit shall be brought is not party or privy to this bond. ***** “(e) The term ‘person’ as used in this bond shall be construed to mean and include, both singular and plural, corporations, partnerships, associations, individuals, and the heirs, executors, administrators, successors, or assigns hereof. “(f) The acts, omissions or failures of authorized agents or representatives of said Principal or persons who said Principal shall knowingly permit to represent themselves as acting for said Principal, shall be taken and construed to be the acts, omissions or failures of said Principal and to be within the protection of this bond to the same extent and in the same manner as if they were the personal acts of said Principal. “(g) This bond may be terminated by either party hereto by delivering a written notice of termination to the other party, and to the Chief of the Packers & Stockyards Division at Washington, D. C. at least ten days prior to the effective date of such termination.” That bond remained, and was, in effect through all times material in this action. In fact, the several claims in suit all arose during the first year after its execution. Commencing at a date which is not precisely identified, but antedating 1952, and continuing through all the time involved in this action, Vernon F. Kuhlmann, under the name or style of “Vern F. Kuhlmann, doing business as Davenport Sales Barn,” in addition to and separately from his business as Deshler Sales Company, and his operation of Deshler Sale Barn, was also engaged in business at, and operated as, Davenport Sale Barn, in Davenport, Nebraska. There he conducted regular weekly public sales of livestock, and generally conducted a livestock and sale barn business. For that business, he maintained a separate bank account in a bank at Davenport. And the business at Davenport was an entity in itself, distinct from that by him conducted as Deshler Sales Company. The Davenport Sale Barn was not posted or bonded under the Packers and Stockyards Act, 1921. It was covered, although to precisely what extent is not disclosed in this record, by a bond given under Nebraska state authority, which, though mentioned in the evidence, is not really before the court or involved in the present suit. For all of his livestock and sale barn operations, except those at Davenport, and also for the disbursement of his living expense, Vernon F. Kuhlmann utilized the banking facilities of the Deshler Bank. Before the posting of the Deshler Sale Barn under the Packers and Stockyards Act, 1921, as the court understands the evidence, he maintained there a single bank account through which he deposited all funds received by him and made his disbursements for all purposes, business (exclusive of that conducted as Davenport Sale Barn) and personal. After such posting and the registration, supra, of Deshler Sale Barn, ostensibly to comply with the Act and pertinent regulations, Vernon F. Kuhlmann maintained in the Deshler bank more than one checking account. One such account was identified as “Deshler Sales Company Custodial Account.” Into it, Vernon F. Kuhlmann made deposits of the proceeds of the livestock of others sold by him on commission, generally at the regular livestock auctions at Deshler Sale Barn, and from it, by cheeks, he made disbursements on account of such sales, principally of the net sale prices, to the owners of the livestock sold, but also for items of expense incident to such sales, and probably for other matters related to the business of selling on commission. In the same bank, he maintained another account under the name, “Deshler Sales Barn, General Account.” The evidence is not clear or convincing as to exactly what the transactions were whose proceeds and disbursements were supposed to pass through that account. These may have included purchases and sales of livestock, if any, recognized by Vernon F. Kuhlmann as being made by him as “Vernon F. Kuhlmann, doing business as Deshler Sales Company.” But it is not shown that checks for any such purchases were drawn against, or the proceeds of any such sales were deposited in, that account. The evidence, in fact, discloses that no checks for the purchase of livestock were drawn against it. Actually, the precise use of the account and the degree of its activity, beyond the fact that it was used as a source for the payment of expenses, are left very obscure by the evidence. A third account was maintained in the bank in the personal name of Vernon F. Kuhlmann. For his use in making withdrawals from that account, he caused checks to be specially printed, whose distinguishing features were a printed cut of a steer’s head at its upper left corner, and, immediately to the right thereof, and in its top center segment, the printed identification in bold letters: “Vern Kuhlmann “Auctioneer and Livestock Dealer “Sales each Tuesday “Deshler, Nebr. - 19 — ” In point of fact, Tuesday of each week was the regular auction sale day at Deshler Sale Barn. That form of check was in common and general use at all times material in this case, and, with a single exception shortly and clearly to be noted, is the form on which the checks were written upon which the several claims now in dispute are premised. It was this third account that was principally utilized by Vernon F. Kuhlmann in his varied business operations, including, but not at all limited to, his purchases and sales of livestock, except sales on commission as agent in behalf of outside consignors. But these Bank accounts were not operated with strict consistency or fidelity to an inflexible program or pattern. And this was especially true with the third, or so-called personal, account. With substantial frequency, checks drawn on one of the accounts were paid out of one of the others, and, from time to time, funds in one account were by the bank shifted and transferred into another of the accounts, but with this reservation, that the custodial account was not resorted to for the payment of checks drawn against, or for transfer of funds to, either of the other two accounts. Sometimes, however, checks drawn against the custodial account were paid out of one of the other two accounts; and the custodial account was occasionally enlarged by transfer of funds from one or the other of the other two accounts. The actions in this paragraph mentioned were taken with the express authorization of Vernon F. Kuhlmann. During, and for some not exactly established interval prior to the times herein involved, one Mark Moore was employed, for the performance of general duties, by Vernon F. Kuhlmann. In that employment, he had authority to transact any of the usual business which Vernon F. Kuhlmann was operating. And this expressly included the purchase and sale of livestock, and the execution and delivery of checks against the several bank accounts, all in the name and behalf of Vernon F. Kuhlmann. He was actively engaged in that employment, and in it represented Vernon F. Kuhlmann with full authority through June, 1952. Throughout 1952, and for some time theretofore, no one but Vernon F. Kuhlmann had any share or interest in his livestock operations, wherever or in whatever manner conducted, with the exception of his participation sporadically in temporary and isolated ventures with various local friends, generally in feeding projects, which have no practical significance in this case. On May 28, 1952 Osborne Livestock Commission Company sold 76 head of cattle described and priced in its sales invoice under that date, copy of which is attached to its answer and cross-complaint herein, at a public auction at its stockyard in Osborne, Kansas, on a commission basis, as a market agency, under the Packers and Stockyards Act, 1921, for the respective owners thereof, to Vernon F. Kuhlmann (under the name of Vern Kuhlmann), Deshler, Nebraska, for the purchase price of $15,430.62. On May 28, 1952, Osborne Livestock Commission Company remitted the net proceeds of such sale of such 76 head of cattle to the respective owners thereof. On May 28,1952, Vernon F. Kuhlmann purchased such 76 head of cattle for his own account, and received and accepted delivery thereof, at Osborne Livestock Commission Company’s stockyard; and in that behalf acted personally and not through any employee or agent. On May 28, 1952, Vernon F. Kuhlmann made, executed, issued and delivered to Osborne Livestock Commission Company (under the name of Osborne Sale Company) check No. 4110, bearing date “5-28-1952,” payable to “Osborne Sale Company,” drawn on Nebraska Security Bank, Deshler, Nebraska, and signed “Vern Kuhlmann,” a photostatic copy of which is attached as Exhibit A to the answer and cross-complaint herein of Osborne Livestock Commission Company. Said check was for the sum of $15,-530.62. The check in the last paragraph described was made, executed, issued and delivered to Osborne Livestock Commission Company both in supposed and ostensible payment of the purchase price of $15,430.62 for such 76 head of cattle purchased May 28, 1952, and also in the supposed and ostensible and intended payment of an erroneous underpayment in the sum of $100 upon the purchase price of certain livestock theretofore, and on May 21, 1952, purchased by Vernon F. Kuhlmann at a public auction at the stockyard of Osborne Livestock Commission Company. Osborne Livestock Commission Company, defendant herein, was and is the same entity as Osborne Sale Company, designated as the payee in such check. Such check for $15,530.62 was, by Osborne Livestock Commission Company, on May 31, 1952, endorsed and deposited to its credit and in its account in Farmers National Bank of Osborne, Kansas. It was presented in due course for payment to Nebraska Security Bank, Deshler, Nebraska, and its payment was demanded. It was dishonored for “insufficient funds,” and its payment was refused by the drawee bank. It was protested for non-payment on June 5, 1952 by one P. A. Ude, a Notary Public, and also charged back against the account of Osborne Livestock Commission Company in Farmers National Bank of Osborne, Kansas, and has never been paid. Except for the credit thereon, in consequence of the receipt by way of a dividend in bankruptcy, as hereinafter recited, the purchase price of $15,430.62 for such 76 head of cattle, and the $100 balance of the purchase price of such livestock sold on May 21, 1952, have never been paid to said Osborne Livestock Commission Company. Subsequent to the execution and delivery of such check for $15,530.62 to Osborne Livestock Commission Company, and as of November 17, 1955, there was paid to Osborne Livestock Commission Company, as a credit upon, and against, the amount due to it upon such check and upon its claim based thereon, the sum of $3,194.45. Such payment was made as a dividend in the course of a proceeding in bankruptcy in which Vernon F. Kuhlmann was the bankrupt, then being conducted and pending in this court. On May 31,1952, Salina Sales Pavilion sold 41 head of cattle described and priced in its sales invoice under that date, copy of which is attached to its answer and cross-complaint herein, at a public auction at its stockyard in Salina, Kansas, on a commission basis, as a market agency, under the Packers and Stockyards Act, 1921, for the respective owners thereof to Vernon F. Kuhlmann (under the name of Vern Kuhlmann), Deshler, Nebraska, for the purchase price of $7,863.02. On May 31, 1952, Salina Sales Pavilion remitted the net proceeds of such sale of such 41 head of cattle to the respective owners thereof. On May 31,1952, Vernon F. Kuhlmann purchased such 41 head of cattle for his own account, and received and accepted delivery thereof at Salina Sales Pavilion’s stockyard; and in that behalf acted personally and not through any employe^ or agent. On May 31,1952, Vernon F. Kuhlmann made, executed, issued and delivered to Salina Sales Pavilion (under the name of Salina Sale Co.) cheek No. 4118, bearing date “5-31-1952,” payable to “Salina Sale Co.,” drawn on Nebraska Security Bank, Deshler, Nebraska, and signed “Vern Kuhlmann,” a photostatic copy of which is attached as Exhibit A to the answer and cross-complaint herein of Salina Sales Pavilion. Said check was for the sum of $7,863.02. The check in the last paragraph described was made, executed, issued and delivered to Salina Sales Pavilion in supposed and ostensible payment of the purchase price of $7,863.02 for such 41 head of cattle, purchased on May 31, 1952. Such check for $7,863.02 was, by Salina Sales Pavilion, endorsed and deposited on June 2, 1952 to its credit, and in its account, in the Planters State Bank of Salina, Kansas. It was presented in due course for payment to Nebraska Security Bank, Deshler, Nebraska, and its payment was demanded. It was dishonored for “insufficient funds,” and its payment was refused by the drawee bank. It was protested for non-payment on June 6, 1952 by one P. A. Ude, a Notary Public, and also charged back against the account of Salina Sales Pavilion in the Planters State Bank of Salina, Kansas, and has never been paid. On June 7, 1952, Salina Sales Pavilion sold 38 head of cattle described and priced in its sales invoice under that date, copy of which is attached to its answer and cross-complaint herein, at a public auction at its stockyard in Salina, Kansas, on a commission basis, as a market agency, for the respective owners thereof, to Vernon F. Kuhlmann (under the name of Vern Kuhlmann), Deshler, Nebraska, for the purchase price of $7,673.-63. On June 7, 1952, Salina Sales Pavilion remitted the net proceeds of such sale of such 38 head of cattle to the respective owners thereof. On June 7, 1952, Vernon F. Kuhlmann purchased such 38 head of cattle for his own account, and received and accepted delivery thereof, at Salina Sales Pavilion’s stockyard; and in that behalf acted personally and not through any employee or agent. On June 7, 1952, Vernon F. Kuhlmann made, executed, issued and delivered to Salina Sales Pavilion (under the name of Salina Sale Co.) check No. 4044, bearing date “6-7-1952,” payable to “Salina Sale Co.,” drawn on Nebraska Security Bank, Deshler, Nebraska, and signed “Vern Kuhlmann,” a photostatic copy of which is attached as Exhibit C to the answer and cross-complaint of Salina Sales Pavilion herein. Said check was for the sum of $7,673.63. The check in the last paragraph described was made, executed, issued and delivered to Salina Sales Pavilion in supposed and ostensible payment of the purchase price of $7,673.63 for such 38 head of cattle. Such check for $7,673.63 was, by Salina Sales Pavilion, on June 9, 1952 endorsed and deposited to its credit and in its account in the Planters State Bank of Salina, Kansas. It was presented, in due course, for payment to Nebraska Security Bank, Deshler, Nebraska, and its payment was demanded. It was dishonored for “insufficient funds,” and its payment was refused by the drawee bank. It was charged back against the account of Salina Sales Pavilion in Planters State Bank of Salina, Kansas, and has never been paid. Salina Sales Pavilion is the same entity as “Salina Sale Co.” designated as the payee in the two several checks last hereinbefore described. Subsequent to the execution and delivery of said two checks, one for $7,-863.02, the other for $7,673.63, to Salina Sales Pavilion, and as of November 17, 1955, there was paid to Salina Sales Pavilion as a credit upon and against the total amount of $15,536.65 due to it upon said two checks, the sum of $3,195.70. Such payment was made as a dividend in the course of a proceeding in bankruptcy in which Vernon F. Kuhlmann was the bankrupt, then being conducted and pending in this court. Except for the credit thereon, in consequence of the receipt by way of dividend in bankruptcy as recited and found in the last preceding paragraph, the aggregate purchase price of $15,536.65 for said two parcels of cattle so sold as aforesaid by Salina Sales Pavilion has never been paid to the said Salina Sales Pavilion. On June 2, 1952, Beverly Livestock Sales Company sold 31 head of cattle and 84 pigs, described and priced in its sales invoices under that date, copy of which is attached to its answer and cross-complaint herein, at a public auction at its stockyard in Salina, Kansas, on a commission basis, as a market agency, under the Packers and Stockyards Act, 1921, for the respective owners thereof to Mark Moore, as agent for Vernon F. Kuhlmann, for the purchase price of $5,735.59. On June 2, 1952, Beverly Livestock Sales Company remitted the net proceeds of such sale of such 31 head of cattle and 84 pigs to the respective owners thereof. On June 2,1952, the said Mark Moore, as agent for Vernon F. Kuhlmann, purchased such 31 head of cattle and 84 pigs for the account of said Vernon F. Kuhlmann, and received and accepted delivery thereof, at Beverly Livestock Sales Company’s stockyard, for and in behalf of said Vernon F. Kuhlmann. On June 2, 1952, the said Mark Moore, as agent for the said Vernon F. Kuhlmann, made, executed, issued and delivered to Beverly Livestock Sales Company an un-numbered check bearing date “6-2-1952,” payable to the order of “Beverly Livestock Sales Co., Inc.,” drawn on Nebraska Security Bank, Deshler, Nebraska, and signed “Vem Kuhlman-Mark Moore,” a photostatic copy of which is attached as Exhibit A to the answer and cross-complaint herein of Beverly Livestock Sales Company. Said check was for the sum of $5,735.59, and was written upon a so-called universal check form and not upon one of the check forms which Vernon F. Kuhlmann had theretofore caused to be printed in his behalf, supra, and was then customarily using. The check in the last paragraph described was made, executed, and delivered to Beverly Livestock Sales Company in supposed and ostensible payment of the purchase price for said 31 head of cattle and 84 pigs. Beverly Livestock Sales Company is the same entity which is designated in the body of the check last hereinbefore described under the name of “Beverly Livestock Co., Inc.” as the payee in said check. Such check for $5,735.59 was by Beverly Livestock Sales Company, on June 3, 1952, endorsed and deposited to its credit and in its account in the Planters State Bank of Salina, Kansas. It was presented, in due course, for payment to Nebraska Security Bank, Deshler, Nebraska, and its payment was demanded. It was dishonored for “insufficient funds,” and its payment was refused by the drawee bank. It was protested for non-payment on June 6, 1952, by one P. A. Ude, a Notary Public, and also charged back against the account of Beverly Livestock Sales Company in Planters State Bank of Salina, Kansas, and has never been paid. On June 9, 1952, Beverly Livestock Sales Company sold 26 head of cattle, described and priced in its sales invoice under that date, copy of which is attached as Exhibit D to its answer and cross-complaint filed herein, at a public auction at its stockyard in Salina, Kansas, on a commission basis, as a market agency, for the respective owners thereof, to Mark Moore, as agent for Vernon F. Kuhlmann, for the purchase price of $6,-916.10. On June 9, 1952, Beverly Livestock Sales Company remitted the net proceeds of such sale of such 26 head of cattle to the respective owners thereof. On June 9,1952, the said Mark Moore, as agent for Vernon F. Kuhlmann, purchased such 26 head of cattle for the account of the said Vernon F. Kuhlmann, and received and accepted delivery thereof at Beverly Livestock Sales Company’s stockyard, for and in behalf of said Vernon F. Kuhlmann. On June 9, 1952, the said Mark Moore, as agent for the said Vernon F. Kuhlmann, made, executed, issued and delivered to Beverly Livestock Sales Company, check No. 4090, bearing date “June 9, 1952,” payable to the order of “Beverly Sale Co.,” drawn on Nebraska Security Bank, Deshler, Nebraska, and signed “Vern Kuhlman-Mark Moore,” a photostatic copy of which is attached as Exhibit C to the answer and cross-complaint herein of Beverly Livestock Sales Company. Said check was for the sum of $6,916.10. The check in the last paragraph described was made, executed and delivered to Beverly Livestock Sales Company in supposed and ostensible payment of the purchase price for said 26 head of cattle. Such check for $6,916.10 was by Beverly Livestock Sales Company, on June 10, 1952, endorsed and deposited to its credit and in its account in the Planters State Bank of Salina, Kansas. It was presented in due course for payment to Nebraska Security Bank, Deshler, Nebraska, and its payment demanded. It was dishonored for “insufficient funds,” and its payment was refused by the drawee bank. It was protested for nonpayment on June 13, 1952 by one P. A. Ude, a Notary Public, and also charged back against the account of Beverly Livestock Sales Company in Planters State Bank of Salina, Kansas, and has never been paid. On June 9, 1952, Beverly Livestock Sales Company sold 58 head of cattle and 7 pigs, described and priced in its sales invoice under that date, copy of which is attached as Exhibit F to its answer and cross-complaint herein, at a public auction at its stockyard in Salina, Kansas, on a commission basis, as a market agency, for the respective owners thereof, to Mark Moore, as agent for Vernon F. Kuhlmann, for the purchase price of $8,818.23. On June 9, 1952, Beverly Livestock Sales Company remitted the net proceeds for such sale of such 58 head of cattle and 7 pigs to the respective owners thereof. On June 9, 1952, the said Mark Moore, as agent for Vernon F. Kuhlmann, purchased such 58 head of cattle and 7 pigs for the account of Vernon F. Kuhlmann, and received and accepted delivery thereof at Beverly Livestock Sales Company’s stockyard, for and in behalf of said Vernon F. Kuhlmann. On June 9, 1952, the said Mark Moore, as agent for the said Vernon F. Kuhlmann, made, executed, issued and delivered to Beverly Livestock Sales Company, check No. 4089, bearing date “June 9,1952,” payable to the order of “Beverly Sale Co.,” drawn on Nebraska Security Bank, Deshler, Nebraska, and signed “Vern Kuhlman-Mark Moore,” a photostatic copy of which is attached as Exhibit E to the answer and cross-complaint herein of Beverly Livestock Sales Company. Said check was for the sum of $8,818.23. The check in the last preceding paragraph described was made, executed and delivered to Beverly Livestock Sales Company in supposed and ostensible payment of the purchase price for said 58 head of cattle and 7 pigs. Beverly Livestock Sales Company is the same entity which is described and designated in the body of the two checks last hereinbefore described, both issued on June 9, 1952, under the name of “Beverly Sale Co.,” as the payee in each of said checks. Said check for $8,818.23 was by Beverly Livestock Sales Company, on June 10, 1952, endorsed and deposited to its credit and in its account in Planters State Bank of Salina, Kansas. It was presented in due course for payment to the Nebraska Security Bank, Deshler, Nebraska, and its payment was demanded. It was dishonored for “insufficient funds,” and its payment was refused by the drawee bank. It was protested for non-payment on June 13, 1952, by one P. A. Ude, a Notary Public, and also charged back against the account of Beverly Livestock Sales Company in Planters State Bank of Salina, Kansas, and has never been paid. Subsequent to the execution and delivery to Beverly Livestock Sales Company of the three checks last hereinbefore described, one under date of June 2, 1952, for $5,735.59, and two for $6,916.-10 and $8,818-23 respectively, both under date of June 9, 1952, and as of November 17, 1955, there was paid to Beverly Livestock Sales Company as a credit upon and against the total amount of $21,469.-92 due to it upon said three checks, -the sum of $4,416.10. Such payment was made as a dividend in the course of a proceeding in bankruptcy in which Vernon F. Kuhlmann was the bankrupt, then being conducted and pending in this court. Except for the credit thereon, in consequence and by way of the dividend in bankruptcy, as recited and found in the last preceding paragraph, the aggregate purchase price of $21,469.92 for said three parcels of livestock, so sold as aforesaid by Beverly Livestock Sales Company, has never been paid to the said Beverly Livestock Sales Company. On May 31, 1952, Cloud County Livestock Commission Company sold five head of cattle referred to in general terms in its answer and cross-complaint herein, at a public auction, at its stockyard in Concordia, Kansas, on a commission basis, as a market agency, under the Packers and Stockyards Act, 1921, for the respective owners thereof to Mark Moore, as agent for Vernon F. Kuhlmann, for the purchase price of $656.12. (The court has been unable to reconcile that price exactly with its own summation of the prices for the individual cattle, as shown on the several scale slips therefor. But the disparity is only six cents, and is regarded as too trivial for further consideration.) On May 31, 1952, Mark Moore, as agent for Vernon F. Kuhlmann, purchased such five head of cattle for the account of Vernon F. Kuhlmann, and received and accepted delivery thereof at Cloud County Livestock Commission Company’s stockyard, for and in behalf of Vernon F. Kuhlmann. On May 31, 1952, Mark Moore, as agent for Vernon F. Kuhlmann, made, executed, issued and delivered to Cloud County Livestock Commission Company, check No. 4084 bearing date “May 31, 1952,” payable to the order of “Cloud County Sale,” drawn on Nebraska Security Bank, Deshler, Nebraska, and signed “Vern Kuhlman-Mark Moore,” a photostatic copy of which is attached as Exhibit A to the answer and cross-complaint herein of Cloud County Livestock Commission Company; which check was for the sum of $656.12. The check in the last paragraph described was made, executed, issued and delivered to Cloud County Livestock Commission Company in supposed and ostensible payment of the purchase price of $656.12 for such five head of cattle so purchased on May 31, 1952 as herein-before found. In such check, Cloud County Livestock Commission Company was designated as “Cloud County Sale,” as the payee thereof. Such check for $656.12 was, by Cloud County Livestock Commission Company either on May 31, 1952 or on June 2, 1952, endorsed and deposited to its credit in The Cloud County Bank, Concordia, Kansas. It was presented in due course for payment to Nebraska Security Bank, Deshler, Nebraska, and its payment was demanded. It was dishonored for “insufficient funds,” and its payment was refused by the drawee bank. It was protested for non-payment on June 6, 1952 by one P. A. Ude, a Notary Public, and also charged back against the account of Cloud County Livestock Commission Company in The Cloud County Bank, Concordia, Kansas, and has never been paid, either entirely or partially. The purchase price for such five head of cattle has never been paid, either entirely or partially. Cloud County Livestock Commission Company did not file in its behalf any claim in bankruptcy in respect of the check immediately hereinbefore described, or the debt thereby evidenced, and has not received, through or out of the bankruptcy proceeding involving the estate of Vernon F. Kuhlmann, a bankrupt, any dividend, or distribution whatsoever. The purchases of livestock, either by ¡or in behalf of Vernon F. Kuhlmann, so made at the several public auctions held at the several stockyards of Osborne Livestock Commission Company, Salina Sales Pavilion, Beverly Livestock Sales Company, and Cloud County Livestock Commission Company, were not isolated purchases at such stockyards, or at any of them, by or in behalf of Vernon F. Kuhlmann. On the contrary, for several years prior to such purchases, Vernon F. Kuhlmann had frequently attended such sales and made purchases of livestock at each of such stockyards. Anker Petersen now resides and at all times material herein resided on a farm in Thayer County, Nebraska, some five miles north of the viHage of Hardy, and in the general trade territory of Deshler. He has always been a farmer, and incidentaUy a stock raiser and feeder. He was acquainted with Vernon F. Kuhlmann, and had known him for several years. In June, 1952, his son, Lyle Petersen, whose exact age seems not to be shown, was a member of his farm household. On June 9, 1952 Vernon F. Kuhlmann eame to the farm home of Anker Petersen, and orally opened negotiations with Anker Petersen for the purchase of some fat cattle which, within the general knowledge of Vernon F. Kuhlmann, were located on the Petersens’ farm. These included fifteen steers, of which, however, one belonged to Lyle Petersen, and four heifers. Apart from the steer of Lyle Petersen, all of those cattle belonged to Anker Petersen. One of Anker Petersen’s steers was not, at the time of Vernon F. Kuhlmann’s call, available for his inspection. It had gotten detached from the rest of the herd, and could not immediately be located; but it then was believed to be, and actually was, on the farm. Vernon F. Kuhlmann, in that interview at the farm, made an offer in terms per hundredweight of one price for the steers, another for the heifers. But the offer for the steers was made subject to his inspection of the absent steer which could not then be made. After some negotiations, Vernon F. Kuhlmann and Anker Petersen agreed upon prices per hundredweight for the animals, subject however to (a) Kuhlmann’s inspection and approval, at the tentatively agreed price, of the absent steer, (b) Anker Petersen’s refusal to sell any of the animals unless he could find that steer, and unless Vernon F. Kuhlmann, on examination, would approve it and take all of the steers, including it and Lyle Petersen's steer, at the price then offered for steers, (c) the weighing of the animals at Deshler Sale Barn to determine the overall price, and (d) a somewhat indefinite arrangement that if he continued to want the animals, Vernon F. Kuhlmann would send a truck or trucks out to Anker Petersen’s farm to transport them to Deshler Sale Barn, where Kuhlmann’s inspection of the absent steer would be made and the sale, if finally made, would be closed. With the negotiations in that position, Vernon F. Kuhlmann left the Anker Petersen farm. Later, during the same day, Anker Petersen located the missing steer. And at about six o’clock in the evening, through procurement by Vernon F. Kuhlmann, a truck appeared at the Petersen farm to get the cattle and take them to the Deshler Sale Barn. With Anker Petersen’s help, the cattle were loaded into the truck. The trucker then transported them to Deshler Sale Barn. And Anker Petersen in an automobile followed the truck to the Sale Barn. When the cattle in the truck, and Anker Petersen in the Petersen automobile, arrived at Deshler Sale Barn, Vernon F. Kuhlmann was already there. He first inspected the theretofore missing steer, and agreed to purchase it in the lot at the same price per hundredweight as the rest of the steers, and he and Anker Petersen then agreed finally to the sale of the cattle at the prices theretofore offered by Vernon F. Kuhlmann, and provisionally (supra) assented to by Anker Petersen. The cattle were then weighed on Deshler Sale Barn’s scale. The heifers were weighed in a group separately, and the steers in small groups. Vernon F. Kuhlmann did the weighing. He made out a scale ticket identifying and briefly describing each group weighed, all of which tickets were given by him to Anker Petersen, but have evidently been misplaced or discarded and are not in evidence. But he also prepared, though not in very intelligible form, a summary of the weights and computation of the prices for the animals then purchased. That summary makes reference to the number of animals involved by the figures “5, 9, 1,” which, by associated testimony, are shown with fair certainty to identify the several lots of steers as they were weighed, and to refer to a total of fifteen animals, and also by the figure and abbreviation, “4 Hfrs,” meaning the four heifers then sold. Lyle Petersen’s steer was separately weighed and its sale price separately figured. The computation and figures thus referred to were made on a form of statement or invoice in use at and by Deshler Sale Barn, generally it would seem, in its commission selling operations. The form, as disclosed by the instrument itself, which is in evidence, bears the following printed identifying material: “Barn Phone 49 Res. Phone 142 Deshler Sales Co. Vern Kuhlmann, Owner, Sales Every Tuesday No.Hd. Description Buyer Price Weight Amount Commission Yds. & Ins. Inspection Total It must be understood that, except under the heading reference, “No.Hd.” the ticket thus in evidence was not filled out with fidelity to the form, and to its columnar headings and line indications, supra. It was, rather, used as stationery whereon to make and preserve the figures of the weights and prices of the animals sold, and, even that, without adequate detail or exactness. Still, with the evidence before it, the court is able to understand the significance of the ticket. Upon the computation of the sale prices, according to the weights thus determined, and the agreed prices per hundredweight, Vernon F. Kuhlmann made, executed, issued and delivered for the cattle two checks, both drawn on Nebraska Security Bank, Deshler, Nebraska, one to Lyle Petersen for $328.60, being numbered 4048, in payment for the steer belonging to Lyle Petersen, the other numbered 4047 to Anker Petersen for $5,393.93, in payment for the remaining fourteen steers and four heifers; and, thereupon, the animals were left at the Deshler Sale Barn as delivered to Vernon F. Kuhlmann. The latter check bore a notation that it was “For 18 Str. & Hfrs.” Both checks were signed by Vernon F. Kuhlmann, under the name “Vern Kuhlmann.” The foregoing check for $328.60 to Lyle Petersen was, on or prior to June 14, 1952, deposited in Farmers State Bank, Superior, Nebraska, and in due course thereafter was presented through the Omaha branch of Federal Reserve Bank to Nebraska Security Bank, Deshler, Nebraska, for payment; by which drawee bank payment was refused for “insufficient funds.” On June 13, 1952, Anker Petersen endorsed and delivered the check to him for $5,393.93 to Hastings Production Credit Company (holder of a mortgage on his cattle thus sold). That check was thereupon in due course presented for payment to Nebraska Security Bank, Deshler, Nebraska, by which its payment was refused for “insufficient funds.” And on June 18, 1952 such check was protested for non-payment by one P. A. Ude, a Notary Public. Subsequent to the execution and delivery of those two checks to Lyle Petersen and Anker Petersen respectively, and as of November 17, 1955 there were paid to Lyle Petersen the sum of $67.58 and to Anker Petersen the sum of $1,109.45. Those payments were made as dividends, upon the several claims of Lyle Petersen and Anker Petersen, in the course of a proceeding in bankruptcy in which Vernon F. Kuhlmann was the bankrupt, then being conducted and pending in this court. Except for the credit thereon, in consequence and by way of the dividends in bankruptcy, as recited and set forth in the last preceding paragraph, the checks so made, executed, issued and delivered to Lyle Petersen and Anker Petersen respectively, and the purchase prices for the steer belonging to Lyle Petersen and for the steers and heifers belonging to Anker Petersen have never been paid. Lauritz M. Andersen is also and sometimes known as L. M. Andersen. In 1952, he resided near Ruskin, Nebraska, and between eleven and fifteen miles distant from Deshler, Nebraska, and was engaged in business as a farmer and livestock feeder. Because of its relevance to facts hereinafter found, it is now found as a fact that he then was and still is a practicing member of a religious society by one of whose tenets the transaction of commercial business on Sunday is either forbidden or firmly discouraged. In 1952, June 8 was a Sunday. Andersen had then been acquainted with Vernon F. Kuhlmann for about ten years, and had theretofore done business with Vernon F. Kuhlmann at Deshler Sale Barn, in the course of which Andersen had both sold and bought livestock at such barn. On Thursday, June 5, 1952, Lauritz M. Andersen went to the home of Vernon F. Kuhlmann in Deshler, and asked Vernon F. Kuhlmann whether he desired to make any further purchases of cattle during that week. Kuhlmann replied that he did not know but if he concluded to do so he would call on Mr. Andersen. Later, and during the afternoon of that day, Kuhlmann appeared at the Andersen farm, looked at Mr. Andersen’s cattle and talked with him. Kuhlmann then made an offer to buy at $31.50 per hundredweight all of a herd of such steers, except one for which he then made no offer, but which he wholly excluded from his offer. No agreement whatever was then reached between the parties. Then, on Sunday, June 8, 1952, Vernon F. Kuhlman returned unannounced to the Andersen farm and had a further conversation with Lauritz M. Andersen about the cattle. At that time, he raised his offer for the cattle to $31.75 per hundredweight, but with the one steer excluded on which he still made no offer. Lauritz M. Andersen then refused to do any business, or further to discuss the sale of the cattle, on Sunday. But he told Kuhlmann that if he desired to purchase all of the cattle in the herd, he should send a truck out for them on the next day. In the forenoon of Monday, June 9, 1952, at the procurement of Vernon F. Kuhlmann, two trucks appeared at the Andersen farm. The operators of the trucks and Mr. Andersen loaded twenty-nine steers into the trucks. These included the one steer on which Kuhlmann had made no offer, and which he had excluded from his earlier offers. The operators of the trucks then took the steers into Deshler and to the Deshler Sale Barn. Lauritz M. Andersen followed immediately behind the trucks in his automobile, and arrived at the barn with the steers. Vernon F. Kuhlmann was at the barn. Vernon F. Kuhlmann then offered $30 per hundredweight for the previously excluded steer after inspecting that steer, and stood firm in his offer of $31.-75 per hundredweight for the other twenty-eight steers, but all subject to a deduction of two percent as a shrinkage charge. Lauritz M. Andersen accepted the offer. Thereupon, Vernon F. Kuhlmann weighed the steers upon the scale at the sale barn. The steer whose agreed price was $30 per hundredweight was weighed alone. The other twenty-eight steers were weighed in four groups, each comprising seven steers. Mr. Kuhlmann made out scale weight records, one for each of those weighing operations, each showing the number and classification of the animals weighed in the operation, the total weight and the agreed price per hundredweight, and the designation of “L. M. Anderson” (sic) as the owner. And a copy or duplicate of each such record was given to Lauritz M. Andersen. Vernon F. Kuhlmann then prepared — on a form identical with that used, supra, in the purchase on the same day from the Petersens, supra — a sale statement, showing again, but on a single sheet, the data he had already entered on the scale weight records, containing an addition of the weights, and a computation of the amount due on the basis of the weights and prices, namely $9,990.58. This sale statement was also given to Lauritz M. Andersen.