Avery Co. v. Kemp

• Decision Date: 03 July 1917
• Docket Number: No. 14700.,14700.
• Citation: 196 S.W. 1069
• Parties: AVERY CO. v. KEMP.
• Court: Missouri Court of Appeals

196 S.W. 1069

AVERY CO. v. KEMP.

No. 14700.

St. Louis Court of Appeals. Missouri.

July 3, 1917.

Rehearing Denied July 17, 1917.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

"Not to be officially published."

Action by the Avery Company against I. D. Kemp, in which defendant set up a counterclaim. Judgment for defendant, and plaintiff appeals. Affirmed.

Stocks & Stocks, of Mexico, Mo., and H. N. Eversole, of Fulton, for appellant. A. C. Whitson, of Mexico, Mo., for respondent.

ALLEN, J.

This is an action upon a note, originally instituted in the circuit court of Calloway county. On change of venue the cause went to the circuit court of Audrain county, where a trial, before the court without the intervention of a jury resulted in a judgment in favor of defendant on plaintiff's cause of action and for defendant on a cause of action set up by defendant in his answer by way of counterclaim, and the plaintiff prosecutes the appeal before us.

The amended petition upon which the cause was tried alleges that by his promissory note of date July 14, 1909, attached to the petition, defendant promised, for value received, to pay to plaintiff the sum of $262.50 on the 1st day of September, 1910, with interest and attorney's fees; that on January 27, 1911, defendant paid plaintiff the sum of $114.70, which was credited on the note, and that the balance, principal and interest, still remains due and unpaid, for which, with attorney's fees, plaintiff prays judgment.

The answer admits the execution of the note, and denies generally the other allegations of the petition. "For further answer and defense and counterclaim to the plaintiff's petition," it is alleged that in July, 1909, plaintiff sold to defendant a certain threshing outfit, consisting of a traction engine, separator, etc., and that in payment thereof defendant executed to plaintiff four promissory notes aggregating $1,081.20, including the note sued upon, two of which were indorsed by one Powell, and also executed to plaintiff a chattel mortgage upon the property as security for the payment of the notes; that on November 1, 1910, defendant being then in default, plaintiff took possession of the property under the chattel mortgage, and, through its agent, one McIntyre, posted notices for the sale thereof, to take place on November 12, 1910, on a farm "some miles south from McCredie, Mo."; that on the day last mentioned defendant and some friends who were ready, able, and willing to buy the property or to assist defendant in buying it, together with other prospective bidders, were present, but that plaintiff's agent, without legal cause, refused to sell the property in the absence of one Hartz, an agent of plaintiff, and postponed the sale; that within a few days thereafter plaintiff's agent, McIntyre, notified defendant by telephone that he would sell the property on November 28, 1910, at McCredie, Mo., but that the agent in fact sold the property on November 26, 1910, plaintiff becoming the purchaser for the sum of $170. It is averred that McIntyre did not "post notices for said pretended sale according to law and as provided by terms of the said mortgage, and that the notices posted by him were insufficient in law, and did not apprise the public in the vicinity of the kind and character of the sale"; that no persons were present at the pretended sale who were interested in or able to buy the property except an agent of plaintiff; that plaintiff "did improperly, illegally and fraudulently sell and buy in" the property at this pretended sale, "for the grossly inadequate sum of $170"; that but for the false statement of plaintiff's agent, McIntyre, as to the date of sale, defendant would have been present, "ready and willing to make the said machinery bring its value"; that the sale was so postponed, and the date thereof fraudulently represented by plaintiff's agent, in order to defraud defendant of his rights in the property, which were worth $1,050; that such pretended sale was fraudulent and void; and that within a few days thereafter plaintiff sold the property to one Bach for the sum of $800. And it is further averred that but one note, for $262.50 and interest, remains unpaid. And defendant prays "that the said illegal and fraudulent sale of said machinery by the plaintiff on November 26, 1910, be declared void and for naught held and set aside; and that the plaintiff be adjudged to have converted the property so sold to its own use; and that the court take into account the value of said property at the date of said sale; and that the same be declared in satisfaction of the notes herein sued on; and that defendant have judgment against the plaintiff for the balance in the sum of $769.12," and for general relief.

A reply was filed (said to have been a general denial), but it is not preserved in the record.

The evidence discloses that defendant, in purchasing the property, executed the four notes and the chattel mortgage securing them, as alleged in the answer. Two of them were indorsed by Powell and it appears that prior to the seizure of the property by plaintiff he had paid a part of the amount due upon one note and had received from defendant a second mortgage on the property. It is said that it was intended that Powell indorse the two first falling due, but that in fact he indorsed the first and the fourth notes. The third note, that in suit, matured on September 1, 1910, and the fourth fell due on November 1, 1910. Defendant failed to pay the note in suit at its maturity, and on November 1, 1910, the day upon which the last note became due, plaintiff, through its agent, one McIntyre, a constable, took possession of the property, then upon the Craig farm a few miles from McCredie, Calloway county, and posted notices of a sale thereof to be held at the Craig farm on November 12, 1910. In the meantime defendant, according to his testimony and that in his behalf, made arrangements with two friends to advance money to enable him to buy the property at the sale. Defendant testified to the effect that he thought it necessary to proceed in this manner in order to give to those advancing the money a first mortgage on the property, and that he contemplated executing to Powell another second mortgage to secure him. Upon the day named for the sale, though a number of persons were present, including defendant, McIntyre declined to proceed therewith, saying that he would later sell the property at Fulton. He gives as his reason that there were not enough bidders present. Plaintiff's agent, Hartz, through whom McIntyre's directions originally came, and who ultimately bought...