Joseph Schnaider Brewing Co. v. Niederweiser

• Decision Date: 20 December 1887
• Citation: 28 Mo.App. 233
• Parties: JOSEPH SCHNAIDER BREWING COMPANY, Respondent, v. TONY NIEDERWEISER et al., Appellants.
• Court: Missouri Court of Appeals

28 Mo.App. 233

JOSEPH SCHNAIDER BREWING COMPANY, Respondent, v. TONY NIEDERWEISER et al., Appellants.

Court of Appeals of Missouri, St. Louis.

December 20, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed nisi.

MUENCH & CLINE, for the appellants.

BROADHEAD & HAEUSSLER, for the respondent.

OPINION

LEWIS P. J.

This is a suit in replevin for certain fixtures and furnishings contained in a saloon on the corner of Sixth and Chestnut streets, in the city of St. La. The cause was tried before the court, sitting as a jury, and judgment was rendered for the plaintiff.

It appears from the testimony that, in the year 1885, Charles Martin occupied the premises as a tenant, and owned the fixtures and furnishings in controversy. In September of that year, being indebted to John H. Vette, for borrowed money, he conveyed the property in dispete to Vette by chattel mortgage, and afterwards turned over the property to the mortgagee. In December, or thereabouts, the defendant Niederweiser, obtained from the owner a lease of the building, and effected an understanding with Vette and Martin that he should purchase the fixtures for four hundred dollars, and go into possession of the property. The plaintiff had previously furnished Niederweiser with one hundred and fifty dollars to enable him to pay the first month's rent. Niederweiser paid one hundred dollars to Vette, leaving three hundred dollars of the purchase money for the fixtures unpaid. What then followed is differently told by the several parties to the transactions. Joseph M Schnaider testifies that the plaintiff corporation, of which he is vice-president, paid the balance of three hundred dollars purchase money, took possession of the premises, and received a bill of sale, which was shown in evidence, from Vette and Martin; that the plaintiff then put Niederweiser in to sell its beer, and gave him the use of its fixtures, so long as he sold its beer. The witness further said: " The transfer was arranged by Vette, Niederweiser and Martin and Merrill, our secretary. * * * Niederweiser paid one hundred dollars to Vette on account of the four hundred dollars, and for our account as part of the one hundred and fifty dollars, advanced by us for his rent. The plaintiff never ran the saloon. Niederweiser did that. His sign was put up, and still remains there. He had possession of the property in question from the time we bought the property. It was with our consent that he carried on the saloon business. * * * In December the purchase was made, and he took possession immediately thereafter. That was according to the understanding. * * * I don't know what arrangement Niederweiser had with Vette. Our secretary paid the three hundred dollars to Vette and closed the transaction."

The defendant Niederweiser's account differs from this in many particulars. He testifies: " I rented the premises from the owner. I was informed that Mr. Vette had a chattel mortgage on the fixtures. Martin, the tenant before me offered to let me have possession, if I would pay the chattel mortgage. I went then to Vette's office. * * * As I had one hundred dollars I asked Vette if he would give me more time, if I paid him that much on account of the mortgage. He assured me that he would, and I thereupon paid him that sum. Going down stairs, I met Mr. Merrill, the plaintiff's secretary, and informed him of what I had done, and he went up to see Vette, but I went on down to the saloon. * * * I never knew till long afterwards that the bill of sale had been made out to the plaintiff, or that any bill of sale existed. I put up my sign and took possession for myself. I always thought that Vette made the transaction with me, and gave me possession because I gave him the one hundred dollars. Merrill told me that he paid three hundred dollars, but I told him that I did not care what he did; that I had managed the affair, and had possession. The plaintiff has never offered to pay me back my one hundred dollars." The witness acknowledged that he had received one hundred and fifty dollars from the plaintiff, to be used in paying the first...