Bordeaux v. Hartman Furniture & Carpet Co.

• Decision Date: 04 December 1905
• Citation: 115 Mo. App. 556,91 S.W. 1020
• Parties: BORDEAUX v. HARTMAN FURNITURE & CARPET CO.
• Court: Missouri Court of Appeals

91 S.W. 1020

115 Mo. App. 556

BORDEAUX v. HARTMAN FURNITURE & CARPET CO.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

1. CHATTEL MORTGAGES — BREACH OF CONDITION — RIGHT TO POSSESSION OF PROPERTY — ENTRY BY MORTGAGEE.

A provision of a chattel mortgage, authorizing the mortgagee to take possession of the mortgaged property on condition broken, sufficiently empowers the mortgagee to enter the mortgagor's premises and take the property, provided that he does so without committing a breach of the peace.

2. SAME — TRESPASS.

Where, under a chattel mortgage authorizing it to take possession of the mortgaged property on default in payment of installments of the purchase price of the property, defendant mortgagee, although forbidden by plaintiff mortgagor to take the property, entered plaintiff's premises in his absence and removed the property against the protest of plaintiff's wife, defendant was guilty of an unlawful trespass, although no physical force or violence was used.

3. SAME.

Where a chattel mortgage authorized a mortgagee to take possession of the mortgaged property on condition broken, the mortgagee might lawfully enter the mortgagor's home, although he had been forbidden so to do, and remove the property, provided no resistance was made and the entry was peaceable.

4. APPEAL — INSTRUCTIONS — HARMLESS ERROR.

Where a controversy existed between the parties as to whether the seller had overcharged a certain sum for an article sold, but it appeared that credit had been given the buyer for that sum, the assumption in an instruction that it was an overcharge was harmless error.

5. TRIAL — INSTRUCTIONS — CREDIBILITY OF WITNESS.

An instruction that, if any witness had sworn falsely to any material fact in the case, the jury might disregard such witness' testimony, was erroneous in omitting the word "willfully."

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by James O. Bordeaux against the Hartman Furniture & Carpet Company. Judgment for plaintiff, and defendant appeals. Reversed.

Culver & Phillip, for appellant. Woodson & Woodson, Charles Keller, and L. H. Moss, for respondent.

BROADDUS, P. J.

The plaintiff's suit is to recover damages on account of the insanity of his wife, alleged to have been caused by the wrongful act of the defendant, viz., that, on October 4, 1904, defendant's employés, under its direction, wrongfully entered plaintiff's home and wrongfully and against the protest of his wife took therefrom certain household furniture, which act greatly frightened his wife, caused her to suffer great shame, mortification, and mental anguish, and that constant brooding over said act of defendant's employés caused her to become insane, and it therefore became necessary to confine her in an insane asylum. After a general denial, the defendant alleges substantially as follows: That the property mentioned had been purchased from it by plaintiff's wife at different times, and that portions of the same were not at such time paid for; that to secure the payment of the same the said wife executed her notes with plaintiff, payable in weekly installments, and certain mortgages upon all the property so purchased, which provided that, upon default in the payment of any of said installments, the defendant might take possession thereof; that default was made in the payment of one of said installments; and that it took possession of the said goods, as it had the right to do, under its mortgage. Among the articles purchased was a certain stove or cooking range, for which defendant had charged $65, whereas plaintiff's wife claimed that the price was only $45. She insisted that defendant should give her a credit for the difference, which at first it refused, but finally, at the instance of plaintiff, its manager agreed to credit the difference, but at the same time demanded a payment of $10 on the indebtedness. Plaintiff refused to make such payment, but said he was willing to pay $5; but, as he did not have the money, he made no tender of that sum. The defendant's agent then said that he would take the property under the power contained in the mortgage, whereupon plaintiff said to him "not to touch it." On the next day, defendant sent its employés to plaintiff's home, which they entered, took the property, and carried it away. When they arrived at plaintiff's home, they were admitted by the wife; the plaintiff being absent. They informed her of their purpose to take the property, against which she protested. But they disregarded her protest, and when she insisted that, at any event, they should not take the folding bed, they informed her that they had not authority to take a part, but that they must take it all. There was nothing disrespectful in the manner of defendant's employés, and they used no threats or harsh language. During the time, the wife became greatly excited, and exhibited much distress of mind. She cried and wrung her hands. Some of the neighbors were witnesses to the transaction in the taking of the goods and the woman's distressed condition. The plaintiff was informed of the condition of his wife by telephone. Upon his return home, he found her still wringing her hands, crying, and apparetly alarmed, or, as he expressed it, "scared." She continued to grow worse until it required force to restrain her, and until finally, on the 19th day of October, 15 days after the occurrence detailed, she was placed in an asylum for the insane. That she was and is insane, there is no dispute. There was evidence introduced tending to show that the woman's insanity was not and could not have been caused by said occurrence; but, as the jury has found that such was the cause, it is no longer a matter for discussion in this case, except this court is of the opinion that, although such a result might not ordinarily be expected, yet it was not altogether outside of the range of reasonable probability. The plaintiff recovered in the sum of $1,500, and defendant appealed.

There is no doubt but what, under the terms of the mortgage, default having been made, defendant was entitled to the possession of the mortgaged property. Reddick v. Gressman, 49 Mo. 389; Pfeninghausen v. Shearer, 65 Mo. App. 348. And all the authorities we have examined, and they are numerous, are to the effect that a provision authorizing the mortgagee to take possession of the mortgaged property on condition broken is sufficient to authorize him to enter mortgagor's premises and take such property. Jones on Chattel Mortgages...