Horse of a Different Color Read online

  There had been well over three thousand bushels in the cribs, and from the size of the floating mass I didn’t believe that we’d lost 10 percent of it—yet. If we’d been well-equipped fishermen we might have been able to surround the corn with a purse net and tow it ashore. But with neither nets nor boats there was nothing we could do but hope that by some miracle our corn would be left behind when the flood had passed.

  In spite of all the change in Bob since the end of the year, he had never lost the illusion that he’d someday find a rainbow with a pot of gold at both ends. When I told him that little if any of our corn had yet been swept away, he began talking about putting in another two hundred pigs as soon as the flood went down. But Marguerite must have had a terrible fright between the time of Effie’s line call and his getting home to take her and the children out. Though the water level had dropped a foot and all danger was over before dark, she couldn’t look out across the valley without trembling uncontrollably. She wouldn’t let the baby out of her arms, or Arvis and Betty Mae out of her sight. At any mention of going back to the place she became almost terror stricken. In hope that talking to her mother would quiet her nerves, Effie put through a call to Junction City that evening, but it didn’t help much.

  Nearly every bed in Cedar Bluffs was filled with women and children evacuated from homes on the floor of Beaver Valley, and the men spent the night wherever they had taken their livestock. Bob and I slept under his load of furniture, just outside Simon’s corral, but we were up at the first gray of dawn. The water level had fallen about six feet during the night, but when the sun came up it showed no yellow cast to the brown water that still circled slowly above our corn field.

  The current above the channel was still swift but no longer a raging torrent. As near as we could make out from the railroad embankment, the water was even with the eaves of the house, and the bunkhouse appeared to have settled onto the barn roof. Not far outside the southeast corner of our corn field the creek had cut a new channel, ripping out the railroad along the foot of the bluffs for which the town was named. The water covering the corn field was draining off slowly in the direction of the washout, though the slope of the land was slightly the other way.

  With our corn having disappeared Bob could find no rainbow, to say nothing of a pot of gold. He tried to keep up an appearance of confidence for Marguerite’s benefit, but couldn’t do a good enough job to deceive her. All day Friday he and I rode along the south margin of the flood below town, hoping to find some of our hogs that had managed to swim until they’d reached high ground, but we found only their bloating carcasses. The warning had come early enough that our neighbors had been able to save their horses, cattle, and most of their hogs. Almost no poultry had been saved from places on the valley floor, and drowned turkeys, hens, and roosters hung from the box elder trees all along the creek channel.

  We and most of the men along the south side of the valley spent all day Saturday plowing trenches just above the mud line, dragging in carcasses, and burying them before the stench became unbearable. Although the valley telephone lines were down and all communication cut off, we knew that conditions on the north side must be equally bad, for we could see men with teams and stone boats dragging carcasses up from the margin of the flood.

  When we went back to the village that evening, Effie took me aside and asked, “Has Bob got anything left that he can call his own besides that load of furniture?”

  “Certainly,” I told her. “He doesn’t owe a nickel, his big team is worth four hundred dollars even with conditions as they are, and there’s the Buick, his saddle mare, and a couple of milch cows. I suppose you know that he’d just paid nearly five hundred dollars for corn and was hauling the last load of it home when the flood struck. But he still ought to have about a hundred dollars left, and I owe him seventy from last week’s shipment.”

  “Well,” she said, “I don’t reckon it’s any news to you, but Marguerite’s expectin’ in September. When a woman’s that way she’s liable to get lots of notions into her head that she wouldn’t get otherways, and that’s what’s happened to Marguerite. She’s as scared of taking them little children back to live in that house again as the devil is of holy water, and ever since she talked to her mother she’s been so homesick she can’t hardly stand it. It’ll be leastways a month before that house can be dried out and cleaned up enough to live in, and she’ll go stark-starin’ crazy if she has to sit here that long with nothin’ to do but worry. What I been thinking was that if Bob could afford the train fare he’d ought to send that girl home to visit her folks till the house is ready and signs of the flood kind of wore off from the valley. Like as not, by that time she’ll be over her fright enough that she’ll be glad to come back. Why don’t you kind of drop a hint to Bob?”

  I didn’t drop a hint, but told Bob straight-out what Effie had said, and that I thought she was right. He did too, and I never saw a woman happier than Marguerite was when he told her. There wasn’t much getting ready to be done, and Sunday noon she and the girls took the train from Oberlin.

  By Monday the water had drained off enough that the creek was back in its gorge, leaving the floor of Beaver Valley a half-mile-wide morass of soft mud, spotted with mounds of wreckage and debris. From what remained of the railroad grade, Bob and I could see that the house and barn—protected from the main current by the big cottonwoods and the built-up bridge approach on the Oberlin-McCook road—appeared not to be badly damaged. The bunkhouse sat squarely atop the low-pitched roof of the barn, but all the smaller buildings were completely gone, along with the haystacks, corn cribs, and most of the feed-lot fence. Miraculously, the woven wire fence around the corn field looked to be very slightly damaged, though banked high with debris and mud.

  Late Tuesday afternoon I thought the mud might have dried out enough to hold up my weight. Wanting to find out how much damage had actually been done to the house, I took off my boots and socks, rolled up my jeans, and set out from the shipping pens. The bank of the railroad grade was fairly firm, but at the first step onto cultivated ground I sank to my knee, and on the way down my bare toes raked across something that felt like an ear of corn. I reached into the muck with my hand and found the ear buried under five or six inches of silt that had been brought down by the flood.

  There was no sense in trying to reach the house. But since I was already as dirty as if I’d fallen into a hog wallow I took a few more steps, and at each one my foot struck an ear of corn. I spent an hour wading around the field, and discovered the story of our corn as well as if I’d been able to watch every ear. The reason for its disappearing the first night was that the cobs became waterlogged and the kernels coated with mud, causing the ears to sink a few inches below the surface. Their position left no doubt that they had continued circling, and had settled gradually with the silt as the water, slowed by the debris caught in the fence, drained slowly away. The number of ears I found made me believe that nearly all of our corn was still right there on the place. Although buried under a few inches of mud, I thought it could be salvaged by turning hogs into the field as soon as it had dried out enough to bear their weight.

  After scrubbing myself under the fire hydrant at the grain elevator, I took Bob to the edge of the field and showed him the bushel or so of corn I’d dug out of the mud. I explained why I believed that three thousand bushels might still be on the place, and told him how I thought it could be salvaged. He agreed that most of the corn might be there, but said it would rot before hogs ever rooted deep enough to find it. We were trying to figure out some other way of salvaging when Harry Witham shouted from the elevator, “Telephone!” As we hurried back along the track he sang out, “It’s for you, Bob. Effie say it’s Marguerite calling from Junction City.”

  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 Web
king 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

  THE 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. B
efore 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.