O'Connor & Harder Range & Furnace Co. v. Alexe

• Decision Date: 06 December 1887
• Parties: O'CONNOR & HARDER RANGE AND FURNACE COMPANY, Respondent, v. FRANK ALEXE; JOS. SCHNAIDER BREWING COMPANY, Interpleader, Appellant.
• Court: Missouri Court of Appeals

28 Mo.App. 184

O'CONNOR & HARDER RANGE AND FURNACE COMPANY, Respondent, v. FRANK ALEXE; JOS. SCHNAIDER BREWING COMPANY, Interpleader, Appellant.

Court of Appeals of Missouri, St. Louis.

December 6, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

BROADHEAD & HAEUSSLER, for the appellant: A mortgagee is a purchaser for value. Brocking v. Straeb, 17 Mo.App 303. The burden of proof was on the plaintiff to show that the interpleader had knowledge of the fact that the purchase price had not been paid. Albert v. Besel, 88 Mo 150; Bolckow Mill Co. v. Frazer, 22 Mo.App 109.

EUGENE C. SLEVIN, for the respondent: The cause having been submitted to the jury under proper instructions, the appellate court will not weigh the evidence to see whether the jury came to a correct conclusion on the facts. Johnson v. Building Co., 23 Mo.App. 546; Norton v. City of Moberly, 18 Mo.App. 457; St. Louis Type Foundry v. McCann, 68 Mo. 195. Fraud is not to be presumed; but anything which satisfies the mind and conscience of its existence is sufficient. Cooley on Torts, 475; Frederick v. Allgaier, 88 Mo. 598.

OPINION

LEWIS P. J.

The plaintiff sold and delivered to the defendant, Alexe, six stoves, for cash, payable on delivery. Alexe paid twenty-five dollars on his purchase, leaving a balance unpaid. The record does not inform us of the date of this sale, or the amount of the balance remaining due to the seller. Afterwards, on November 12, 1885, Alexe executed and delivered to the interpleader, Jos. Schnaider Brewing Company, a chattel mortgage, conveying the stoves and other personal property, to secure the payment of a promissory note for seven hundred and fifty dollars, due one day after date. On December 3, 1885, the plaintiff sued Alexe by attachment before a justice of the peace, and caused the stoves to be seized by the constable. The Brewing Company interpleaded, claiming the stoves under its chattel mortgage. The same party took an appeal to the circuit court, where the verdict and judgment were for the present plaintiff, and against the interpleader. The controversy turns upon the application of section 2353, Revised Statutes, which provides as follows:

" Personal property shall, in all cases, be subject to execution on a judgment against the purchaser for the purchase price thereof, and shall in no case be exempt from such judgment and execution, except in the hands of an innocent purchaser for value, without notice of the existence of such prior claim for the purchase money."

At the trial the interpleader introduced in evidence the chattel mortgage, the record of the attachment proceedings, and the oral testimony of two witnesses, as follows:

Frank Sullivan testified: " I am a bartender, at present engaged at the Dunn saloon, on Fifth and Market streets. For some time prior to November 19, 1885, I tended bar for Frank Alexe, at the southeast corner of Seventh and Olive streets. I was there when he got the stoves from O'Connor & Harder. He got from them one stove for the saloon, one for the parlor upstairs, three stoves for three rooms upstairs, and, I believe, one hall stove. They were the same that are included in the chattel mortgage, and the same stoves that were levied on by the constable in the attachment suit. They had been there some time before the date of the chattel mortgage. On the morning of the nineteenth of November, 1885, Mr. Alexe paid me off, and told me he had turned over the property included in the chattel mortgage to Mr. Link, as agent for the Jos. Schnaider Brewing Company, the mortgagees, and had sold the place and the balance of the goods to Mr. Link. He brought Mr. Link behind the counter, and told me that he was the proprietor. Mr. Link said he would engage me, but that he would want to close up first and get things in order, and would open up at twelve o'clock. Everybody left the place but Mr. Link, who closed the doors and had Alexe's signs taken down. I came back at twelve o'clock, but he told me he was not ready to open up then, but to come back at five. I was there about four, when the sheriff levied on some of the goods, and took possession of the place, and the constable levied on these stoves. The next day the place was turned over to Mr. Link by the sheriff, and I stayed there with him, as one of his barkeepers, until he sold the place, and I continued with his successor. I did not know whether Mr. Alexe had paid for the stoves or not. They were delivered and set up by O'Connor & Harder."

E. J O'Connor testified: That he was a member of the O'Connor & Harder Range and Furnace Company; that Alexe had bought the stoves in question from them, for the prices mentioned in the account; that they were to be paid for on delivery; that he had only paid twenty-five dollars on account of them, and the balance was due; that Mr. Link was in possession of...