Bente v. Finley

• Decision Date: 13 May 1935
• Docket Number: No. 17912.,17912.
• Citation: 83 S.W.2d 155
• Parties: BENTE v. FINLEY.
• Court: Missouri Court of Appeals

83 S.W.2d 155

BENTE v. FINLEY.

No. 17912.

Kansas City Court of Appeals. Missouri.

May 13, 1935.

Appeal from Circuit Court, Cooper County; W. S. Stillwell, Judge.

"Not to be published in State Reports."

Suit by John M. Bente against George E. Finley in the justice court. From a judgment, plaintiff appealed to the circuit court, and from a judgment therein, plaintiff appeals and defendant moves to dismiss the appeal.

Motion to dismiss overruled, and judgment reversed and remanded for new trial.

H. K. Bente, of Sedalia, and Pendleton & Martin, of Boonville, for appellant.

Jones & Wesner, of Sedalia, for respondent.

REYNOLDS, Commissioner.

The plaintiff, on October 29, 1930, filed his suit in replevin against the defendant before Henry Saunder, a justice of the peace of Richland township, Morgan county, Mo., seeking the recovery of the possession of an undivided one-half interest in a certain crop of corn grown by defendant on a 40-acre tract upon a certain farm known as the Arni farm, located in section 11, township 45, range 19 west, Morgan county, Mo., during the year of 1930.

The petition, meeting the statutory requirements, duly verified, was in two counts, under the first of which plaintiff sought to recover an undivided one-fourth interest in said corn under and by virtue of a chattel mortgage executed by defendant to him securing the payment of a certain promissory note therein described for the sum of $75, dated May 3, 1930, with interest thereon from date, and under the second count of which he sought the recovery of an undivided one-fourth interest in said corn as the owner thereof under a contract with the defendant. The value of the corn sought to be recovered under the first count is alleged in the petition to be $78, and of that under the second count to be $165. In both the said counts it was alleged that plaintiff was in danger of losing the property sought to be recovered therein unless it should be taken out of the possession of the defendant, and that plaintiff's cause of action accrued within one year next before the filing of the petition.

Judgment was sought under each count for the recovery of the property described therein and for one dollar's damage for the taking and detention thereof and for all injury thereto. A bond in the sum of $490 was given by the plaintiff, which was duly approved. The usual replevin writ was issued, under which the officer took possession of 621 bushels of corn found upon the 40 acres described and delivered it to the plaintiff.

The defendant filed no formal answer or demand for the return of the corn.

In due course, a trial was had before the justice of the peace, resulting in a judgment against the plaintiff, who thereupon appealed to the circuit court. Later said cause was transferred, on change of venue, to the circuit court of Cooper county, Mo., where it was tried at the regular February term, 1932, of the court, resulting in a verdict against the plaintiff on the first count of his petition and an assessment of the value of the corn taken under said count at $383. Under said count, the jury also found the defendant to be indebted to plaintiff on account of the note described in the chattel mortgage in the sum of $83. The trial also resulted in a verdict against the plaintiff upon the second count of his petition and in an assessment of the value of the corn taken under said count at $300. In accordance with the verdict, judgment was rendered on the first count of the petition against plaintiff for $300, being the assessed value of the corn, less the sum of $83, found to be due him by defendant on the secured note, and on the second count of the petition for the sum of $300, the assessed value of the corn taken under said count.

The return of the replevin writ by the officer disclosed that 621 bushels of corn were seized and delivered by him to the plaintiff under the writ. The evidence shows that 251 bushels thereof were delivered under the first count, and 370 bushels thereof under the second count of the petition.

The plaintiff, in due time after the verdict, filed his motion for new trial; and, pending the hearing of such motion, the defendant offered to remit $204.79 of the verdict and judgment had upon the first count and $37.30 of the verdict and judgment obtained on the second count. On the hearing of the motion for new trial at the October term, 1932, of the court, to which term it had been continued, the remittiturs offered by the defendant were allowed by the court; and the judgment upon both counts was accordingly reduced and so entered; and thereupon the motion for new trial was overruled. The final judgment rendered against the plaintiff as reduced on the first count was for $95.21, and on the second count was for $262.70. At the same term at which said motion for new trial was overruled and judgment reduced and entered as reduced, plaintiff filed his application and affidavit for appeal, which application was allowed by the court; and an appeal was granted to this court.

Upon the trial, plaintiff introduced in evidence the chattel mortgage, under which he claims by virtue of the breach of the conditions thereof by defendant in the sale and removal of a portion of said property from the premises on which it was situate, and introduced evidence tending to show a breach of such conditions by defendant under the first count of his petition, together with the note secured thereby. Plaintiff also introduced evidence under the second count of his petition tending to show a contract with defendant, by which defendant agreed to give him one-half of an undivided one-half of said crop of corn upon the Arni farm in consideration of plaintiff's agreeing to furnish him with horses and plows and other implements required to be used in planting and cultivating said crop and tending to show that plaintiff, under such contract, furnished defendant with the work stock and necessary implements to plant and grow said crop.

The chattel mortgage was in the usual form and purported to convey an undivided one-half interest belonging to defendant in the 40-acre tract of corn on the Arni farm, described therein, together with an undivided one-third interest belonging to him in 10 acres of land on plaintiff's farm in Morgan county cultivated by defendant and also an undivided one-third interest belonging to him in 28 acres of soy beans planted and being cultivated by defendant on plaintiff's said farm. However, it does not appear that the 10 acres of corn on plaintiff's farm or the soy beans are involved in this suit.

The mortgage was prepared and drawn at defendant's request by J. H. Gunn, who was a banker at Otterville at that time. Among other provisions, it provided, in substance, that the property thereby sold and conveyed should remain in the possession of the mortgagor until default be made in the payment of his said debt; that, in case of the sale or the disposal or an attempt to sell or dispose of said property or of the removal of or an attempt to remove the same from the lands therein referred to, the said J. M. Bente or his legal representative might take said property or any part thereof into his possession; that, upon taking possession of the property, said J. M. Bente might sell the same at public auction to the highest bidder for cash at the stock pen, Missouri Pacific Railway Company, in the town of Otterville, Cooper county, Mo., by giving 10 days' notice of the sale.

Upon the trial, J. H. Gunn testified that the provision appearing in said mortgage, when introduced in evidence, by which an undivided one-third interest belonging to defendant in 28 acres of soy beans planted and being cultivated by defendant on plaintiff's farm (which provision appeared to have been written therein with pen and ink) was not written by him and was not therein when delivered by him to defendant, and that such provision does not appear in his handwriting. It was, however, admitted by the plaintiff that he wrote the same therein; and it was testified by him upon the trial that he did so at the direction of the defendant; that, when defendant brought the same to him, after it was prepared by J. H. Gunn, he, upon an inspection thereof, discovered that the soy beans were not mentioned but were omitted therefrom; that he thereupon directed the defendant to return the chattel mortgage to J. H. Gunn and have him insert the provision including the soy beans therein; that thereupon the defendant suggested that such was unnecessary and that he, the plaintiff, should write it therein himself; and that thereupon he did so. There was other evidence tending to show the same facts.

The defendant denied upon the trial that such provision was inserted in the chattel mortgage at his suggestion or upon his direction by the plaintiff, and denied having any knowledge that plaintiff did insert said provision until afterwards. He also denied that he had ever agreed with the plaintiff to give an undivided one-fourth or other interest in the corn grown upon the 40-acre tract on the Arni farm or one-half interest in his undivided one-half of said crop in consideration of plaintiff's furnishing the work horses and implements for the cultivation of the same, or upon any other consideration. He, however, admitted that he used plaintiff's plow horses, farm implements, and other equipment in planting and cultivating said crop of corn, but testified that plaintiff, for whom he was working upon plaintiff's farm, told him that he might use his teams and implements in cultivating the 40-acre tract on the Arni farm and, if he made anything, he could pay him in the fall in corn for the use of the same, but denied that he agreed to give plaintiff any interest in the corn.

He admitted the execution of the mortgage on his interest in the 10-acre tract of corn on the plaintiff's farm and his undivided one-half interest in the 40-acre tract on the Arni farm, but denied that he gave or...