This case is submitted on reargument after a rehearing granted from a former decision found on page 692, ante. It is not deemed necessary to restate the facts recited in that opinion, and in the opinion to which it refers. The rehearing was granted because the defendant in error contended that we had misapprehended the date of a conversation between Woollen, the owner and mortgagor of the cattle, and Brown and Dale, the agisters, and that said date is of controlling force in the decision of the controversy. The mention of this date in the opinion is, however, rather indefinite, than incorrect. The mortgage under the authority of which Perry claimed the right to take possession of the cattle, or at least the only valid mor (gage in evidence, and of which the agisters are to be presumed to have had notice, provided that in case of default of the mortgagor the animals should be sold for the satisfaction of the mortgage debt at the Union Stock Yards at South Omaha, in Douglas county, after twenty days’ advertisement of the sale in a newspaper published in that county. It was after Perry had told the agisters that Woollen had notified the mortgagees to take the cattle under the instrument, and had signified to them his intention so to do, that the conversation in question took place. These representations were an assertion of the right of possession, and substantially a demand for it, and seemed to have prompted Brown and Dale to visit Woollen, to whom they, at least in part, repeated them, and from whom they received a confirmation of them. The opinion is therefore literally correct in saying that “After Perry had demanded the cattle for this purpose [namely, taking them to South Omaha for sale], and had asserted that Woollen had abandoned all claim to them, Brown and Dale went and saw1' the latter, who said to them: ‘You see that you get your feed lien satisfied out of the cattle. So far as I am concerned, I can do nothing for you, but you get your feed lien out of the cattle, and it will be perfectly satisfactory to me,’ ” etc. *696It was after both these conversations that Perry did seize the cattle and drive them to Atlanta for the purpose of shipping them to South Omaha. This purpose Woollen had not only stipulated for in his mortgage, but had then recently directed, by letter, his mortgagees to carry into execution. Of this purpose, and of Woollen’s concurrence therein, all the parties connected with the transaction had full knowledge.
Shortly after Brorvn and Dale had taken the cattle in replevin, they did ship them to South Omaha, at which place, it is entirely clear from the record, all parties were willing and desirous that they should be sold. The only matter in controversy was whether the agisters’ lien or the mortgage debt should be preferred in payment from the proceeds. It is not testified that Woollen expressly consented that the shipment or sale should be made by the plaintiffs in error, but the matter was of such notoriety and affected his interests so closely that he must be presumed to have known of the shipment, and from the fact that he has never, so far as appears, made any objection thereto, it would be competent for a jury to infer that he impliedly consented to or acquiesced in it. If he did either, we do not conceive that the holder of the mortgage has any just ground of complaint. It is a mere volunteer. The agisters, having both the superior lien and the possession, were not in privity with it, by contract or otherwise, and owed it no duty, except to refrain from any act tending to injure or defraud it, and to care for the animals without negligence. The statute provides agisters with a remedy for the enforcement of their lien, but it would be an anomaly to hold that a different means for its satisfaction may not be adopted, with the consent or acquiescence of their bailor under circumstances having no tendency to injure any third person.
There is not in this record the slightest evidence of any intent on the part of Brown and Dale, or of either of them, to repudiate the title of their bailor, Woollen, or to injure or diminish his interest in the cattle in any respect or de*697gree, or to defeat the lien of the mortgage, unless it is to be inferred solely from the fact that they shipped them for sale to the market where he and the mortgagee had stipulated that they should be sold for the satisfaction of the mortgage. Under all the circumstances of this case it is not unreasonable to suppose that he impliedly consented to or acquiesced in such shipment; and as this is a question of fact, we are still of the opinion that it should have been left to the jury, to say whether he did so. Whether Perry was agent for the mortgagees, or of their assignee, the defendant in error, is also a question of fact to be decided by a consideration of all the circumstances, and is also, if material, to be answered by the jury.
It is therefore recommended that the former decision of this court be adhered to, and that the judgment of the district court be reversed and a new trial granted.
Duffie and Albert, CC., concur.By the Court: For the reasons stated in the foregoing opinion, it is ordered that the former decision of this court be adhered to, and that the judgment of the district court be reversed and a new trial granted.
Reversed and remanded.
Note. — Agister.—See 63 Nebr., 369, note.