Allen v. Bagley and F. & H. Sav. & L. Assn.

• Decision Date: 30 October 1939
• Docket Number: No. 19446.,19446.
• Citation: 133 S.W.2d 1027
• Court: Missouri Court of Appeals
• Parties: CLARENCE E. ALLEN AND CARRIE MAY ALLEN, RESPONDENTS, v. ELMER F. BAGLEY AND FARM & HOME SAVINGS & LOAN ASSOCIATION, APPELLANTS.

133 S.W.2d 1027

CLARENCE E. ALLEN AND CARRIE MAY ALLEN, RESPONDENTS, v. ELMER F. BAGLEY AND FARM & HOME SAVINGS & LOAN ASSOCIATION, APPELLANTS.

No. 19446.

Kansas City Court of Appeals, Missouri.

October 30, 1939.

Appeal from Jackson Circuit Court. — Hon. Emory H. Wright, Judge.

AFFIRMED.

Harris & Koontz for appellant.

(1) The court erred in not sustaining defendant's demurrers to the evidence for the reason that under the evidence plaintiff was not entitled to recover. Sebastian Co. Coal Co. v. Fidelity Fuel Co., 310 Mo. 158, 274 S.W. 774; St. Louis Catering Co. v. Glancy, 294 Mo. 438, 242 S.W. 392; New First National Bank v. Rhodes, 332 Mo. 163, 58 S.W. (2d) 742; Abbott v. Miller, 226 Mo. App. 277, 41 S.W. (2d) 898; Jackson v. Rothschild, 99 S.W. (2d) 859. (2) The court erred in giving plaintiff's instruction No. 1 offered by the plaintiff for the reason that instruction failed to require the jury to find that plaintiff were entitled to the possession of the property. Jensen v. Turner, 16 S.W. (2d) 742; Bently v. Hurley, 299 S.W. 604; Sullivan v. Gault, 299 S.W. 1116; Sebastian Co. Coal Co. v. Fidelity Fuel Co., 310 Mo. 158, 274 S.W. 774; Pledge v. Griffith, 199 Mo. App. 303, 202 S.W. 460; Schwald v. Brunjes, 139 Mo. App. 516; Summers v. Baker, 158 Mo. App. 666. (3) The court was without jurisdiction to hear the cause, hence the judgment rendered is null and void. Haehl v. Wabash Ry., 119 Mo. 325, 24 S.W. 737; St. ex rel. Chandler v. Allen, 235 Mo. 298, 138 S.W. 339; Fenn v. Reber, 153 Mo. App. 219, 132 S.W. 627; Title Guaranty & Surety Co. v. Drennon, 208 S.W. 474; Fox-Miller Grain Co. v. Stephans, 217 S.W. 994; Dorton v. K.C. Rys. Co., 204 Mo. App. 262, 224 S.W. 30; Cole v. Norton, 251 S.W. 723; Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; Hirsch v. Hirsch, 273 S.W. 151; May Hosiery Mills v. Hirsch, 274 S.W. 887; Goddard v. Delaney, 181 Mo. 564, 80 S.W. 886. The court erred in sustaining plaintiff's motion for an order nunc pro tunc and in diminution of the record. Doerschuk v. Locke, 51 S.W. (2d) 62, l.c. 64; In Re Kellam's Estate, 53 S.W. (2d) 401. The parties treated this cause as being at issue and the plaintiffs in listing the cause for trial asserted that the issues were made up, hence defendant was not in default.

Calvin & Kimbrell for respondents.

(1) The court did not err in overruling the demurrer offered by the defendant, Farm and Home Savings and Loan Association of Missouri, at the close of the plaintiffs' testimony in chief, nor did he err in overruling said defendant's demurrer offered at the close of all the testimony. Richardson v. Ashby, 132 Mo. 238, 33 S.W. 806, l.c. 808; Nevius v. Moore, 221 Mo. 330, 120 S.W. 43, l.c. 52; Kegan v. Park Bank of St. Joseph, 8 S.W. (2d) 858, l.c. 872. (2) The appellant is in no position to complain of any error which the court may have committed in the giving of plaintiffs' instruction 1: (a) because it had filed no answer to the plaintiffs' petition, or any other pleading to the merits; (b) because it, therefore, by its default, confessed the allegations of the plaintiffs' petition; and, (c) because it was, therefore, not entitled to complain of the action of the court as to the giving of any instruction on the part of plaintiffs. (3) The appellant is not in a position to complain of any error which the court might have committed, in giving the aforesaid instruction, because its Instruction C-1 embodies the identical error of which it complains. Hill v. Meyer Bros. Drug Co., 140 Mo. 433, 41 S.W. 909; Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610; Meyers v. Drake, 324 Mo. 612, 24 S.W. (2d) 116; Carrow v. Pinnell et al. (Mo. App.), 44 S.W. (2d) 884; State ex rel. Hwy. Comm. of Mo. v. Williams, 227 Mo. App. 196, 51 S.W. (2d) 538; Taylor v. Clevland, etc., Ry. Co., 333 Mo. 650, 63 S.W. (2d) 69, 290 U.S. 685, 78 L. Ed. 590; Wilkerson v. Mo. Pac. R. Co. (Mo. App.), 69 S.W. (2d) 299; Schell v. Ransom, etc., Co. (Mo. App.), 79 S.W. (2d) 543; Gibbany v. Walker, 121 S.W. (2d) 317. (4) An appellate court will not review a case upon a different theory from that upon which it was tried below; but will adhere to the theory upon which the same was tried. Benz v. Powell, 338 Mo. 1032, 93 S.W. (2d) 877; American Sash & Door Co. v. Commerce Trust Co., 332 Mo. 98, 56 S.W. (2d) 1034; Toroian v. Parkview Amusement Co., 331 Mo. 700, 56 S.W. (2d) 134; Kincaid v. Birt, 29 S.W. (2d) 97. (5) The only issue, as between the plaintiffs and the defendant, Farm and Home Savings and Loan Association of Missouri, leaving out of consideration the fact that it failed to plead to the plaintiffs' petition, was whether the plaintiff, Carrie May Allen, executed the assignment in question, or whether her purported assignment was a forgery. (6) The court by and before which this cause was tried, was and is a court of general jurisdiction, therefore, every presumption that it had jurisdiction of the subject-matter of this action, and also had jurisdiction of and over the parties thereto, will be indulged in favor of such jurisdiction; but, in view of the present state of the record, appellant's contention that the court was without jurisdiction in the premises, is without merit. State ex rel. Robbins v. Gideon, 228 Mo. App. 1023, 77 S.W. (2d) 647; Hall v. Thurman (Mo. App.), 86 S.W. (2d) 1069; Sec. 822, R.S. Mo., 1929; Exchange National Bank v. Allen, 68 Mo. 474; Smith v. DeLano et al., 179 Mo. App. 242, 166 S.W. 852; Ross v. Kansas City, etc., R. Co., 141 Mo. 390, 38 S.W. 926; Campbell v. Spotts, 331 Mo. 974, 55 S.W. (2d) 986.

BLAND, J.

This is an action for the conversion of two certificates of corporate stock issued by the defendant, Farm & Home Savings & Loan Association of Missouri. There was a verdict and judgment in favor of plaintiffs in the sum of $1685.78. The defendant, Farm & Home Savings & Loan Association of Missouri (hereinafter called the defendant) has appealed.

The facts show that the plaintiffs, husband and wife, were the owners of the certificates of stock in question; that the plaintiff, Carrie May Allen, went to the offices of the defendant, in Kansas City, and applied for a loan. She was informed there that the company could not make a loan on the certificates and she was referred to Mr. Boyer, in the offices of Elmer F. Bagley & Son. Thereafter, she called at the offices of the defendant, Bagley, and there on September 25th, 1933, she borrowed the sum of $350, giving her promissory note, due one year after date to "Elmer F. Bagley & Co."

It was stipulated between the parties at the trial that Bagley sold the certificates "sometime within 10 or 30 days after the date the loan was made. It is claimed by plaintiffs that Bagley had no authority to sell the certificates and was guilty of their conversion when he did so. On the back of each certificate appears an assignment to W.H. Fullerton, which assignments purport to be executed by the plaintiff, Carrie May Allen. However, she denied that she signed her name to the assignments and plaintiffs claimed at the trial that same were forgeries.

It was stipulated at the trial that defendant acquired the certificates, for value, on or about March 15, 1934; that their value at the time of their sale by Bagley was $1685.78 and that was their value at the time of their acquisition by the defendant. The note recites that the market value of the certificates was $773.24; that that sum, with interest at the rate of 5% per annum, would be the limit of the liability of the payee.

Plaintiffs' evidence shows that neither one of them learned of the sale of the stock by Bagley until shortly before the note became due; that the amount due on the note was never tendered to Bagley but plaintiffs had made arrangements to get it; that Bagley told Mrs. Allen on several occasions that he would replace the certificates which he failed to do and that after several unsuccessful attempts to get Bagley to produce the certificates, plaintiffs filed this action.

It was stipulated at the trial that plaintiffs prior to filing this suit, made demand on defendant for the return to them of the certificates, which defendant refused. Defendant introduced no evidence except the testimony of an expert on questioned documents, who testified that the signature appearing in the assignments on the backs of the certificates was that of the plaintiff, Carrie May Allen, in his opinion.

The note provided that the payee was authorized at any time to transfer the securities to its own name or that of its nominee; that the payor agreed that if the payee should feel unsafe or insecure for any reason whatever, or feared diminution or depreciation in the value of the certificates, then it might either declare said note due or it might sell and transfer any and all of said securities and the payor would accept other securities of equal denomination in the same corporation, or in lieu of such securities the proceeds of their sale plus interest.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. In this connection defendant says that, by the terms of the note, Bagley had the right to sell and transfer the securities for any reason whatsoever. There is no merit in this contention. The fact that the payee was authorized, at any time, to transfer the securities to its own name or that of its nominee, did not give it the right to sell the certificates. [Commonwealth v. Althause, 207 Mass, 32.] Such provisions as those which appear in the note in question are to be strictly construed and a sale is not authorized except on the happening of the conditions specified. [49 C.J., p. 948; Commonwealth v. Althause, supra.]

"A pledgee cannot, unless authorized by the agreement, sell property pledged to him as a security for a debt, before the debt is due, or even then except after due notice to redeem and of the time and place of sale. A provision in a note secured by a pledge of collateral, giving the holder the...