Ess v. Griffith

• Decision Date: 26 March 1895
• Parties: Ess, Administrator, Appellant, v. Griffith et al., Appellants
• Court: Missouri Supreme Court

30 S.W. 343

128 Mo. 50

Ess, Administrator, Appellant, v. Griffith et al., Appellants

Supreme Court of Missouri, First Division

March 26, 1895

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Reversed and remanded.

Leon Block for plaintiff, appellant.

(1) Appellant is entitled to have the action of the trial court reviewed in granting defendants a new trial and in setting aside the first verdict upon the appeal taken from the final judgment in the case. Laws, 1891, p. 70. The statute is a remedial one; is intended for the correction of defects in the former procedure. Sutherland on Statutory Construction sec. 437. (2) All the defendants are guilty of the conversion of these goods. Griffith sold them to the type foundry, and the type foundry was represented in the matter by its general manager, the defendant Pierce, and the type foundry resold the goods. Koch v. Branch, 44 Mo. 542; Mechem on Agency, end of sec. 573, p. 405, and authorities cited. The element of intentional wrongdoing is not necessary to the maintenance of the action of conversion. Purchasing and disposing of timber (supposed to belong to the vendor) constitutes conversion. Waverly Timber & Iron Co. v. St Louis Cooperage Co., 112 Mo. 383. All the defendants are jointly liable. Smith v. Briggs, 64 Wis. 497. (3) The acts of Fowler and Montgomery at the time of the attempted sale on February 9, 1889, neither extinguished nor merged, nor in any way impaired the original mortgage from Clark to Fowler, and the same remained a valid, subsisting "live" mortgage. Hanford v. Obrecht, 49 Ill. 146; Jefferson v. Barkto, 1 Bradw. (Ill.) 568; Crosley v. Chase, 17 Me. 371; Jones on Chattel Mortgages, sec. 811; Walker v. Stone, 20 Md. 195; Jones on Mortgages, secs. 812, 1902, 1920; Jordon v. Furlong, 19 O. S. 89; Bailey v. Myrick, 50 Me. 171; Ohnsburg v. Turner, 13 Mo.App. 533 (affirmed 87 Mo. 127); Brobst v. Brock, 10 Wallace (U.S.) 519; Christy v. Scott, 31 Mo.App. 331; Collins v. Stocking, 98 Mo. 290. (4) The defendant Pierce, either as agent of the corporation or for himself, was not a competent witness, Mr. Fowler being dead. R. S. 1889, sec. 8918; Messimer v. McCray, 113 Mo. 382; Leech v. McFadden, 110 Mo. 584; Williams v. Edwards, 94 Mo. 447; Nichols v. Jones, 32 Mo.App. 657; Meier v. Thieman, 90 Mo. 433; Greenleaf on Evidence, secs. 394, 397, 398 and 417. (5) The burden of proof is upon the junior creditor who wishes to restrict the paramount creditor to a particular fund to show that it affords a sure and adequate means of payment. Evertson v. Booth, 19 Johnson (N. Y.) 486; Woolcocks v. Hart, 1 Paige (N. Y.) 185; Callaway v. Bank, 54 Ga. 572; Wolf v. Smith, 36 Iowa 454; Holditch v. Mist, 1 Peere Williams, 695. Subrogation is their remedy. Bispham's Equity, sec. 341; Woolcocks v. Hart, 1 Paige (N. Y.) 185; Evertson v. Booth, 19 Johnson (N. Y.) 496; 14 Am. & Eng. Encyclopedia of Law, page 693; Neff's Appeal, 9 W. and S. (Penn.) 36; Denham v. Williams, 39 Georgia, 312; Walker v. Covar, 2 S.C. 16. (6) "A court of equity never compels a party having a prior lien upon two funds to resort to only one in other, unless it appears that the one which is not affected by the junior lien is fully adequate to the satisfaction of the prior lien, and that the remedy for reaching it is prompt and efficient." Briggs v. Planters' Bank, Freeman's Chancery Reports (Miss. 574, at page 584), citing Story's Equity; and Walker v. Covar, 2 S.C. 16.

Elijah Robinson for defendants, appellants.

(1) The trial court having sustained a motion for a new trial, the presumptions are all in favor of the correctness of its rulings. And, if the motion might have been sustained on any of the grounds set forth therein, the action of the trial court will not be disturbed. Lovell v. Davis, 52 Mo.App. 342; State ex rel. v. Adams, 84 Mo. 310; Iron Mountain Bank v. Armstrong, 92 Mo. 265; Hewitt v. Steele, 118 Mo. 463. (2) There is no question but that the new trial should have been granted on the fourth, fifth, sixth, seventh and ninth grounds assigned. The court should on the trial of the case have sustained the demurrers to the evidence. (3) Fowler having sold the property under the power contained in the Clark mortgage, for the purpose of shutting out Reber's interest and foreclosing his equity of redemption, and having placed Montgomery in possession of the property under and in pursuance of his purchase at said sale, could not subsequently, nor can his administrator, dispute the validity of said sale. Oliver v. Howard, 11 Mo. 425; McLaughlin v. McLaughlin, 16 Mo. 242; Brown v. Findley, 18 Mo. 375; George v. Williamson, 26 Mo. 190; Merry v. Fremon, 44 Mo. 518; Hall v. Callahan, 65 Mo. 316. (4) The court committed error in excluding the deposition of Montgomery taken on January 10, 1893, and the evidence to impeach Montgomery by showing contradictory statements.

OPINION

Macfarlane, J.

Plaintiff, as administrator of Charles T. Fowler, sued defendants Griffith, The Great Western Type Foundry and S. A. Pierce for the conversion of certain printing presses, type, etc., claimed as the property of plaintiff's intestate. There were three trials. The first resulted in a verdict for defendants and a new trial was granted. The second resulted in a verdict for plaintiff for $ 3,383. On motion of defendants this verdict was set aside and a new trial granted. To this action of the court plaintiff excepted, and filed a bill of exceptions, but took no appeal. On a third trial, in which plaintiff participated, he obtained a judgment for $ 598, and both plaintiff and defendants appealed. In this appeal plaintiff seeks to have the action of the circuit court in granting a new trial reviewed, and a judgment entered on his verdict on the second trial.

Plaintiff's intestate held a mortgage on the property in question, to secure an indebtedness then amounting to about $ 3,000. The mortgage was made by one Clark, and was dated in 1885, and was over due. It contained a power of sale. In January, 1889, the property belonged to one Reber, subject to the mortgage. On January 23, 1889, Fowler made this contract with one W. J. A. Montgomery:

"It is hereby contracted and agreed between Chas. T. Fowler and W. J. A. Montgomery as follows: Upon the refusal of J. S. Reber to pay said Fowler $ 500, said Fowler is to sell to said Montgomery his interest and claim in the Junction Steam Printing House, with accrued interest, amounting to $ 3,000. Said Montgomery is to pay $ 500 in sixty days, and the remainder in sums of $ 500 at intervals of six months thereafter until all of said purchase price is paid; all of these notes to be secured by chattel mortgage on said printing material and to bear interest at ten per cent. per annum. In witness whereof we have set our hands this twenty-third day of January, 1889."

Fowler at once took possession under the mortgage and advertised the property for sale. On the twenty-sixth day of January, 1889, Montgomery executed and delivered to defendant Griffith a mortgage with power of sale on the same property to secure a note for $ 1,050. This mortgage was not recorded until April 6, 1889. The sale was made February 9, 1889. It was understood that the bidding should be free and if the property was bought by Montgomery he should have it on the terms agreed upon in the contract. The sale was public and the property was knocked off to Montgomery at his bid of $ 2,000.

These two contracts, each signed by Fowler and Montgomery, were read in evidence:

"Kansas City, Mo., February 9, 1889.

"This article of agreement witnesseth: That this day W. J. A. Montgomery has purchased of Chas. T. Fowler his investment and interest in the Junction Steam Printing House for $ 3,000, together with a certain farm in Macon county, Missouri, and six lots in east Kansas City, Missouri, which said Fowler holds as collateral security.

"The said Montgomery is to pay $ 500 in sixty days, and the remainder in sums of $ 500 every six months thereafter, as evidenced by his promissory notes of even date herewith. And the said Montgomery hereby assumes, indorses and reassigns the mortgage given by Geo. H. Clark, which remains unsatisfied and unreleased, as security for the payment of said Fowler's investment, and the purchase price of said printing material. It is further agreed that, upon the payment of the above $ 3,000, then a complete conveyance shall be made of said printing material and to said lands. But if at the expiration of sixty days the first payment of $ 500 is not made, then the whole of the $ 3,000 shall become due and payable, and said Fowler may take possession of said printing material and dispose of it as he may deem best.

"Chas. T. Fowler,

"W. J. A. Montgomery."

"Kansas City, Mo., February 9, 1889.

"In consideration that W. J. A. Montgomery move the Junction Steam Printing House, to the Milwaukee building, put it in good condition and running order, Chas. T. Fowler grants possession and guarantees against all claims excepting those specified in the mortgage and the conditions of contract entered into between W. J. A. Montgomery and Chas. T. Fowler, of even date herewith.

"W. J. A. Montgomery.

"Chas. T. Fowler."

The Clark mortgage when read in evidence had these indorsements on it:

"February 9, 1889.

"For value received I hereby assign this mortgage to W. J. A. Montgomery.

Chas. T. Fowler.

"February 9, 1889.

"For value received I hereby reassign and indorse this mortgage and note to Chas. T. Fowler.

"W. J. A. Montgomery."

There was some dispute about the correct date of these contracts and assignments.

After this sale, possession of the property was given to Montgomery, who removed it to another building in Kansas City and made the ordinary use of it....