Blake v. Keiser

• Decision Date: 17 December 1924
• Docket Number: No. 18616.,18616.
• Citation: 267 S.W. 94
• Parties: BLAKE v. KEISER
• Court: Missouri Court of Appeals

267 S.W. 94

BLAKE v. KEISER

No. 18616.

St. Louis Court of Appeals. Missouri.

November 5, 1924.

Rehearing Denied December 17, 1924.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Replevin by Elmer H. Blake against Frank J. Keiser. Judgment for plaintiff, and defendant appeals. Affirmed.

Lubke & Lubke, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

DAVIS, C.

This is an action in replevin, filed June 3, 1922, by plaintiff, the mortgagee in a chattel mortgage, to gain. possession of the restaurant fixtures described therein. The cause was tried before the court and a jury on March 2, 1923, and resulted in a verdict and judgment for plaintiff for the possession of the personal property described in the petition or its value in the sum of $3,000, and $1 damages for its detention. Defendant appealed from the judgment entered. The evidence on behalf of plaintiff tended to show that one Frank J. Seibert, on October 20, 1921, executed his promissory note, due in 60 days, for $3,000 to plaintiff, and secured same by a chattel mortgage covering the items described in the petition, and for which plaintiff sued, which mortgage was duly signed, acknowledged, and recorded. The chattel mortgage warranted the property described free from incumbrances and against any adverse claims. Said mortgage provided that:

"Said property may remain in his (mortgagor's) possession, but in case of failure to pay the installments of said note as they became due respectively; or in case said mortgagee or assigns should at any time deem him insecure, said mortgagee or assigns may take possession of said property and sell the same at public auction," etc.

The evidence in behalf of plaintiff further showed that J. Porter Henry, an attorney at law, in the city of St. Louis, representing said Seibert, advised him relative to the $3,000 loan; that Frank J. Keiser, the defendant, had on or about August 30, 1921, sold to said Seibert a restaurant in the city of St. Louis, including the chattels, for the possession of which plaintiff sued; that at the time of the sale by defendant to Seibert, the latter paid $2,000 in cash, and the former executed a bill of sale to the latter, which, however, was left in the possession of one Otto L. Rauck in escrow until Seibert paid an additional $2,500, when the" bill of sale was to be delivered. The bill of sale said , nothing about a reservation of title in defendant, nor was any paper or writing of any kind executed at any time tending to show that defendant had reserved title until the balance of $2,500 had been paid by Seibert. There was no instrument of any kind of record or filed in the recorder's office showing that Seibert did not have full title to the property in question. The evidence further tended to show that plaintiff loaned Seibert $3,000 in cash at the time of the execution of the mortgage, and that no part of said sum had ever been repaid by Seibert. Plaintiff's evidence further tended to show that, before the execution of the mortgage and the loaning of the money to Seibert, Mr. Henry told plaintiff of defendant's version of the transaction between Seibert and defendant, to wit, that Seibert had paid defendant the sum of $2,000, and that defendant had placed in escrow a bill of sale to be delivered upon an additional payment of $2,500 to him, and that defendant claimed that the title to the property did not pass, but remained in defendant until Seibert paid the additional $2,500.

Defendant in epitomizing the facts states: There was a conflict in the testimony of the defendant and Mr. J. Porter Henry as to whether defendant assented to the giving of the chattel mortgage by Seibert to Blake. Henry testified that he had told Keiser and his attorney Lubke before the mortgage was given that Seibert was going to borrow the money on the property to pay off what he owed to him (Keiser), and that they made no objection, and that after the mortgage was given Keiser inquired of him how soon he would get his money. The defendant on the other hand testified that he knew nothing of the mortgage until after it had been recorded, and that he called Mr. Henry up and expressed surprise that the equipment had been mortgaged, and was told by him that the mortgage had been given for the purpose of paying him his $2,500, and to get $500 extra money to tide over the business, that he asked Henry how soon he would get his money, and was told that he would get the money as soon as the man who was to advance it received the mortgage.

Defendant's testimony tended to show that Seibert failed to pay defendant the sum of $2,500 as agreed. Defendant's evidence further tended to show that on or about August 30, 1921, at the time Seibert paid the initial $2,000, full possession of the property was given him by defendant. Defendant gave Seibert a key to the premises in which the chattels were located. The lease was assigned to Seibert, and thereafter he paid rent on the restaurant property. Defendant informed various tradesmen that he had sold out. Seibert began running the restaurant just as if he was the sole owner and had full title all through the month of September following the initial payment and the execution of the bill of sale. Seibert treated the place as his own, and was given full possession of the chattels sued for.

The petition, omitting caption and a description of the property sued for, is as follows:

"Plaintiff states that on the 8th day of December, 1921, he was the mortgagee of, and lawfully entitled to the possession of, the following described personal property, namely: * * * That said property is of the value of $3,000; that afterwards on said day defendant wrongfully took said property and unjustly retains the same at said city of St. Louis to the plaintiff's damage in the sum of $500. Wherefore plaintiff prays judgment against the defendant for the recovery of the possession of said property and $500 damages for their taping and detention; and, in case a delivery of said property cannot be had, this plaintiff prays judgment for $3,000, the value thereof."

The answer, omitting caption, is as follows:

"And now comes the defendant, and for his answer to the plaintiff's petition denies each and every allegation thereof. And further answering, this defendant says that the plaintiff claims the right of possession of the personal property described in the plaintiff's petition under, by, and through a certain purported chattel mortgage executed by one Frank J. Seibert, and defendant says that said Frank J. Seibert had no right, title, or interest in and to said property, or any part thereof, at the time said purported chattel mortgage was executed, and that the plaintiff took said purported chattel mortgage with full knowledge that said Frank J. Seibert had no right, title, or interest in and to said property attempted to be conveyed thereby, and with full knowledge that the defendant was and still is the owner of said property; that said purported chattel mortgage is entirely without consideration, in that no debt from said Frank J. Seibert is in fact secured thereby. Wherefore, having fully answered, the defendant prays to be dismissed hence, with his costs."

The reply was a general denial.

I. Defendant challenges the action of the trial court in refusing to direct a verdict in his favor. He contends that, inasmuch as the record shows that the note matured December 19, 1921, and, inasmuch as the petition alleges the right to possession of the property on December 8, 1921, the debt was not due, and, as plaintiff failed to show any other breach of condition in the mortgage, he was not entitled to possession, and his cause of action failed. He further contends on the record set out just preceding that the verdict was not responsive to the issues. It will be observed that suit was filed and instituted on June 3, 1922, subsequent to the maturity of the note as shown by the evidence. Looking to the record we are of the opinion that the cause was tried on the theory that plaintiff was entitled to possession at the time of the institution of the suit; but whether or not it was tried on that theory we need not discuss, for the record shows that the suit was filed on June 3, 1922, and the issue in replevin concerns plaintiff's right to possession to the property at the time of the institution of the action. Leavel v. Johnston, 209 Mo. App. 197, 232 S. W. 1064; Oester v. Sitlington, 115 Mo. 247, 21 S. W. 820; Advance Thresher Co. v. Pierce, 74 Mo. App. 676. It follows that at the time of the institution of this suit the promissory note secured by the...