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61 Meech were the owners of certain livestock, consisting of 151 hogs, which they shipped and delivered to said C. F. Pfeiffer & Sons of Buffalo, N. Y., to be sold for them for cash and to remit to them the proceeds of such sale, after deducting their reasonable charges and commissions and freight and fodder charges; that said livestock were so delivered with the direction to said C. F. Pfeiffer & Sons to remit the proceeds of 51 thereof to the said S. P. Bailey and the proceeds of the balance thereof to the said P. L. Meech; that the said C. F. Pfeiffer & Sons received said livestock in trust for the purpose of making such sale for cash and remitting the proceeds thereof to the said owners, and that at all times until sold the title of said livestock and thereafter the proceeds thereof remained in said S. P. Bailey and P. L. 63 Meech.

That on or about the 19th day of October, 1908, said C. F. Pfeiffer & Sons sold said livestock for the sum of $1219.89; that the reasonable charges and commissions to be paid from the proceeds of said livestock to said firm was the sum of $79.70, which sum said C. F. Pfeiffer & Sons charged C1 the said Bailey and Meech, and that the balance of such moneys, to-wit, the sum of $1140.19, was the money of said Bailey and said Meech, and the said firm of C. F. Pfeiffer & Sons were under the duty of accounting to and paying over to said Bailey and said Meech such sum.

That upon the receipt of said livestock, and prior to the 19th day of October, 1908, said firm of C. F. Pfeiffer & Sons paid, in accordance with the direction of said Bailey and said Meech, to the

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65 said Bailey the sum of $400; and thereafter and on the 19th day of October, 1908, for the purpose of discharging their trust obligation to said Bailey and to said Meech, by paying to the said Bailey in accordance with the directions which they had received, drew their certain check or draft, numbered 5551, for the sum of $21.48 upon the defendant, the Union Stock Yards Bank of Buffalo and payable through the Carnegie Trust Company, to the order of said S. P. Bailey; and delivered same to said Bailey and thereafter and on the said 19th day of October, 1908, notified and advised the Union Stock Yards Bank at Buffalo, N. Y., that they had drawn such check for said amount, and that they did appropriate such amount of the funds on deposit to their credit at the Union Stock Yards Bank to the payment of said check or draft when the same should be presented for payment, and did deliver to the said defendant, Union Stock Yards Bank at Buffalo, N. Y., on the 19th day of October, 1908, a check to pay the said Union Stock Yards Bank for the amount of said check or draft No. 5551, drawn upon it and payable through the Carnegie Trust Company, which said check the defendant, Union Stock Yards Bank, received and charged to the account of said C. F. Pfeiffer & Sons, which was sufficient to pay the same, and did thereupon, by a notice in writing signed by it, notify the Carnegie Trust Company to honor and pay said check so drawn by said C. F. Pfeiffer & Sons, No. 5551, for $21.48; that such check, so numbered, was drawn, such notice given and payment therefor made to the defendant, the Union Stock Yards Bank of Buffalo, in accordance with the agreement and system adopted by the said C. F. Pfeiffer & Sons and the defendant, the Union

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69 Stock Yards Bank of Buffalo, for the transmission of trust funds by the said C. F. Pfeiffer & Sons to the owners of livestock sold by them as commission merchants and factors for such owners and to satisfy their trust obligations and duties to the owners.

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That thereafter and on or about the 20th day of 70 October, 1908, said C. F. Pfeiffer & Sons, for the purpose of discharging their trust obligation to said Bailey and said Meech by paying to the said Meech the sum of $718.71 in extinguishment thereof in accordance with the directions received from said Bailey and said Meech, drew their said check or draft No. 5558 to the order of said P. L. Meech, and which said check or draft was drawn upon the defendant Union Stock Yards Bank, payable through the Carnegie Trust Company for said amount; and thereafter and on the 21st day of October notified and advised the defendant, the Union Stock Yards Bank at Buffalo, N. Y., that they had drawn such check or draft for said amount and that they did appropriate said amount of the funds on deposit to their credit at the Union Stock Yards Bank to the payment of said check or 72 draft when the same should be presented for payment, and did deliver to the said Union Stock Yards Bank on the said 21st day of October, 1908, its check to pay the said Union Stock Yards Bank for the amount of said check or draft No. 5558 drawn upon it and payable through the Carnegie Trust Company, which said check the Union Stock Yards Bank received and charged to the account of said C. F. Pfeiffer & Sons, which was sufficient to pay the same and did thereupon, by a notice in writing signed by it, notify the Carnegie Trust

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Company to honor and pay the said check or draft so drawn by said C. F. Pfeiffer & Sons, numbered 5558, for $718.71; that such check so numbered was drawn, such notice given and payment therefor made to the defendant, the Union Stock Yards Bank of Buffalo, in accordance with the agreement and system adopted by said C. F. Pfeiffer & Sons and the defendant, the Union Stock Yards Bank of Buffalo, for the transmission of trust 74 funds by the said firm of C. F. Pfeiffer & Sons to the owners of livestock sold by them as commission merchants and factors for such owners and to satisfy their trust obligations and duties to the

owners.

That thereafter and prior to the 29th day of October, 1908, the said firm of C. F. Pfeiffer & Sons collected from the persons who had purchased the said livestock the proceeds thereof and deposited the amount thereof in their said account with the defendant, the Union Stock Yards Bank of Buffalo.

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That thereafter the said P. L. Meech and said S. P. Bailey presented the said checks or drafts, Nos. 5551 and 5558, so drawn by the said firm of 76 C. F. Pfeiffer & Sons, and for which payment had been made, as hereinbefore alleged to the Union Stock Yards Bank of Buffalo and payable through the Carnegie Trust Company at New York City, the place where the same was made payable and demanded payment thereof, but that payment upon each of said checks or drafts was refused and that neither of the same have ever been paid in whole or in part, and neither the said Meech or the said Bailey or this plaintiff has received any of

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the said moneys or any part thereof, and that the same are now in the possession of the Union Stock Yards Bank of Buffalo.

That thereafter and prior to the commencement of this action, the said S. P. Bailey and P. L. Meech duly assigned and transferred all of their rights to the said livestock and to the proceeds 78 thereof and the said checks and drafts Nos. 5551 and 5558 and to all of their causes of action arising from the transaction and sale of said livestock and all of the other matters herein set forth, to this plaintiff and that he is the lawful owner and holder thereof.

FIFTH.

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The plaintiff herein for a fifth, separate and further cause of action against the defendants, alleges, upon information and belief.

1. The plaintiff re-alleges all of the allegations contained in the first cause of action herein in paragraphs numbered "1", "2" and "3".

2. That heretofore and prior to the 19th day of October, 1908, the plaintiff was the owner of certain live stock, consisting of 1 calf, 115 hogs and 114 sheep, which he shipped and delivered to the said C. F. Pfeiffer & Sons at Buffalo, N. Y., to be sold for him for cash and to remit to him the proceeds of such sale, after deducting their reasonable charges and commissions and freight and fodder charges; and said C. F. Pfeiffer & Sons received the said livestock in trust for the purpose of making such sale for cash and remitting the