Berry v. Adams

• Decision Date: 02 April 1934
• Docket Number: No. 17966.,17966.
• Parties: BERRY v. ADAMS.
• Court: Missouri Court of Appeals

71 S.W.2d 126

BERRY v. ADAMS.

No. 17966.

Kansas City Court of Appeals. Missouri.

April 2, 1934.

Rehearing Denied April 30, 1934.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Suit by Wendell Berry against George E. Adams. From an adverse judgment, plaintiff appeals.

Affirmed.

McCune, Caldwell & Downing, of Kansas City, for appellant.

Charles A. McNeese and John H. Newman, both of Kansas City, for respondent.

REYNOLDS, Commissioner.

This is a suit in replevin for the possession of a certain Buick automobile. It was instituted by a petition and affidavit filed in the circuit court of Jackson county on the 25th day of February, 1931. From an adverse judgment, the plaintiff prosecutes this appeal. The cause was tried upon a second amended petition and affidavit and answer thereto. In his said second amended petition, plaintiff alleges that said automobile was being wrongfully detained from him by the defendant at Jackson county, Mo., after demand for delivery of possession thereof. The plaintiff in his second amended petition based his right to the possession of said automobile upon his ownership of a certain note and chattel mortgage executed by the then owner of said automobile and delivered and filed of record in 1930. There was evidence to show that, about February 10, 1930, one Louis Mulconry of St. Louis, Mo. purchased the automobile in question from the Webster Groves Motor Company, a Buick dealer, and thereafter, on February 24, 1930, procured a certificate of title to the same issued to him as the owner by the secretary of state. At the time of purchasing said automobile, the said Mulconry paid for the same in cash and, at or about the same time, executed his note and chattel mortgage thereon to the Southern Auto Sales Company in the sum of $1,200, payable in successive monthly installments of $100 each until fully paid, beginning one month after date. At the time of the execution of said note and chattel mortgage, the automobile was clear of any mortgage; and Mulconry was not indebted in any manner to the said automobile sales company; and nothing was advanced or paid him by said sales company for said note and mortgage. This note appears to have been assigned afterwards to the plaintiff and delivered to him with the chattel mortgage securing the payment of the same, which mortgage was by him filed in the office of the recorder of deeds for the city of St. Louis on April 29, 1930. At the time the said note and chattel mortgage were thus delivered to plaintiff, plaintiff did not advance Mulconry any money or pay him anything on account thereof and, so far as the record discloses, was not Mulconry's creditor in any sum. Plaintiff testified that he intended to lend Mulconry $1,000 on the note, but that Mulconry did not take the loan and he held the mortgage off the record until April 29, 1930, because Mulconry did not borrow, and that, afterwards, on October 6, 1930, he advanced Mulconry the sum of $600 on the note and later the sum of $150. At another place, he testified that the sums so advanced by him to Mulconry and paid him as stated were ninety-day loans which Mulconry was to take up; that such sums were not lent according to the mortgage; and that Mulconry did not borrow the money according to the terms of the mortgage. He also stated that the item of $600 he advanced Mulconry was not, in fact, paid Mulconry but was paid to the Hallenberg Ford Agency, as Mulconry wanted to buy a new Ford. He also testified that the further sum of $150 was paid partly by cash and partly by check, the check being for the sum of $65 and the cash advanced $85. The check was not produced in evidence; neither was the check for the $600, which plaintiff claims to have given the Hallenberg Agency.

In his application for certificate of title, made February 10, 1930, Mulconry failed to show any items of indebtedness or unpaid balance on said automobile or any mortgage thereon; and the certificate of title issued to him thereon likewise failed to show any liens or incumbrances on the same. Plaintiff says that he was aware of the fact that the existence of the Mulconry mortgage was not shown by the certificate of title issued to Mulconry and stated that he never took any steps to correct it.

The certificate thus issued by the secretary of state appears to have been assigned to the Morganford Used Car Company of St. Louis on the 26th day of December, 1930.

The plaintiff appears to have been engaged, at the times mentioned above, in financing automobiles and handling automobile loans. In the early part of January, 1931, the Morganford Used Car Company delivered to the plaintiff a note for $900 with chattel mortgage on the automobile in question, executed by one James B. Drew, to be in lieu of the Mulconry note and mortgage, with the request from the Morganford Used Car Company that the same be accepted by plaintiff in payment of the Mulconry note and mortgage, stating in effect to plaintiff that it had made title to said car to the said Drew and that the papers had been forwarded to the secretary of state. The plaintiff says that he did not accept said mortgage in lieu of payment of the Mulconry note for the reason that Drew's title thereto was defective and that such title, if any, was never filed with the secretary of state. However, it appears that, on January 12, 1931, plaintiff filed the Drew mortgage with the recorder of deeds and that he has retained possession of both the note and said mortgage from the date of delivery to him until the beginning of this suit and, at the time of the trial, still had possession of the same.

There is evidence in the record to show that, in February, 1931, plaintiff appeared in Kansas City, Mo., and demanded possession of the automobile in question from the defendant, George E. Adams, under and by virtue of the Drew note and mortgage, and that, at this time, he said nothing to the defendant, Adams, about the Mulconry note and mortgage and made no claim to him for the delivery of the possession of the automobile under the Mulconry mortgage. True, he testifies that he did claim to the defendant that he had the right to the possession of the automobile by reason of the Mulconry note and mortgage; but he is contradicted by the defendant and the defendant's wife in such particular, both of them testifying that he made no reference whatever to the Mulconry note and mortgage but asserted his right to be under the Drew note and mortgage. He also called, at that time, on Mr. Charles A. McNeese, the attorney for the defendant, to whom the defendant referred him, and explained to Mr. McNeese that his claim to the possession of the automobile was based upon the Drew note and mortgage. Mr. McNeese so testified upon the trial and further testified that no reference whatever was made by plaintiff to any claim under the Mulconry mortgage or even to the existence of such a mortgage at that time.

The testimony of Mr. McNeese further tended to show that plaintiff afterwards returned from St. Louis to Kansas City and called on him the second time with reference to the matter and stated that he had the Mulconry note and mortgage for which he had taken and accepted the Drew note and mortgage but had not released the mortgage of record, that he had talked with some one who had told him that he ought to stand on it, and that he asked witness in what position he would be on it. The witness advised him that, by filing the Drew mortgage in the recorder's office, he had accepted it in place of the Mulconry note and mortgage, to which plaintiff made the reply that the fact that he had placed the Drew mortgage on record was not an acceptance but that he had, nevertheless, accepted it in place of the Mulconry.

Later, in June, 1931, plaintiff notified defendant by letter of the Mulconry mortgage, which was the first knowledge defendant acquired concerning plaintiff's ownership thereof or claim thereunder, other than that indirectly acquired through his attorney after plaintiff's second visit to Kansas City.

Upon this appeal, plaintiff, in his brief on pages 13 and 14, refers to his rights under the Drew mortgage and asserts that it is a valid mortgage.

It appeared, upon the trial, that the plaintiff was in possession of both the Mulconry note and mortgage and the Drew note and mortgage; that both were on file with the recorder of deeds in and for the city of St. Louis, or of record therein; and that neither of the same had been satisfied or released.

It further developed, upon the trial, that a certificate of title to said automobile was issued to one Charles Bradley in the early part of January, 1931, upon application therefor made on January 10, 1931, soon after the Morganford Used Car Company had acquired the title from Mulconry; and it was never shown that any certificate of title to said car was ever issued from the office of the secretary of state to the said James B. Drew. Later, a certificate of title, on application duly made therefor on February 12, 1931, was issued from the secretary of state's office to the defendant, George E. Adams, who, it appears, had purchased said automobile about that date from said Charles Bradley.

With reference to the Drew note and mortgage, the plaintiff testified that, Mulconry having sold the automobile, the Morganford Used Car Company submitted to him the Drew note and mortgage for the sum of $900, to be accepted by him in lieu of the Mulconry mortgage and in payment of the Mulconry note and mortgage; that he was told by the Morganford Used Car Company that it had given title to the automobile to Drew and that the papers had been forwarded to the secretary of state to be transferred; that he caused said mortgage to be filed at the suggestion of the Morganford people; and that, thereafter, in checking up on Drew's title, he found that no certificate had been issued from the secretary of state's office to Drew or recorded in said office,...