Brown v. Koffler
| Decision Date | 15 October 1908 |
| Citation | 113 S.W. 711,133 Mo.App. 494 |
| Parties | LIZZIE BROWN, Respondent, v. JOHN H. KOFFLER et ux., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas H. Reynolds, Special Judge.
Judgment affirmed.
Metcalf Brady & Sherman for appellants.
(1) The court erred in permitting the plaintiff to introduce in evidence over the objection of the defendants a copy of the chattel mortgage and in overruling the defendant's motion to strike such evidence from the record. The mortgage had been released of record and satisfaction acknowledged as provided for by statute. (2) This release and satisfaction of the mortgage is of such a nature that it would first have to be set aside by a court of equity before the instrument so satisfied and extinguished could be recovered upon in a court of law. (3) To permit the plaintiff to submit to the jury the question of fraud in making the marginal release and satisfaction of the mortgage would be presenting an issue not tendered by the pleadings. R. S. 1899, sec. 4358. (4) Quasi-judicial functions are those which lie midway between the judicial and the ministerial ones. The lines separating them from such as are on their two sides are necessarily indistinct; but in general terms when the law in words or by implication, commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial, the function is termed quasi-judicial. Bishop on Non-Contract Law, secs. 785-6; Mechem on Public Officers secs. 618, 637; Throop on Public Officers, sec. 533; McCree v. Purmont, 15 Wend. 474; Chappell v Allen, 38 Mo. 223; Cardwell v. Stuart, 92 Mo.App. 586; Martin v. Turnbaugh, 153 Mo. 172.
Laughlin & Kenworthy for respondent.
(1) That this proceeding for the foreclosure of the mortgage is one at law is well settled. Carr v. Holbrook, 1 Mo. 240; Thayer v. Campbell, 9 Mo. 280; Riley's Adm'r v. McCord's Adm'r, 24 Mo. 265; Fithian v. Monks, 43 Mo. 502; State ex rel. v. Evans, 176 Mo. 310; Rubey v. Coal & Mining Co., 21 Mo.App. 159. (2) It was incumbent upon defendant to prove that Anna Koffler was the owner and holder of the note at the time of the alleged payment. There is no question of fraud in this case. If the testimony of the plaintiff is to be believed, Anna Koffler had no more claim to the ownership of the note than if she had stolen it. The note was left with her for safe keeping. (3) Even if defendants had made the payment in good faith to Anna Koffler, it would be no defense if she obtained title to the note by a forged endorsement. Luther v. Clay, 100 Ga. 95. (4) Appellant is in error in claiming that there is any issue of fraud in this case, and is also in error in claiming, that were such an issue in the case, it could not be raised and determined in this action without resorting to an equitable suit to set aside the cancellation. The law in this state is well settled to the contrary. Valles v. Mountain Co., 27 Mo. 460; Seiberling Miller & Co. v. Tipton, 113 Mo. 373, 379; Joerdens v. Schrimpf, 77 Mo. 385; Lanier v. McIntosh, 117 Mo. 517; Sells v. Tootle, 160 Mo. 606; White v. Stevenson, 144 Cal. 104, 77 P. 512; Chappell v. Allen, 38 Mo. 213.
Action for personal judgment against defendants on a negotiable promissory note and to foreclose a chattel mortgage to secure the payment of the same. Defendants, in their answer, admit the execution of the note and mortgage as alleged in the petition and plead that "they in good faith and for full consideration paid said note at maturity thereof, to Anna Koffler, the then owner and holder of said note and that by reason thereof, the said note is fully paid and satisfied and is now in the possession of these defendants; and that the mortgage securing said note was satisfied of record by Anna Koffler the then owner and holder of said note at the time of the payment as aforesaid."
The reply filed by plaintiff is a general denial. The trial was to a jury and the evidence introduced by plaintiff discloses the following state of facts: Plaintiff is a sister of defendant, John Koffler, and Anna Koffler is their mother. Defendants, husband and wife, borrowed $ 400 of plaintiff on September 23, 1901, and gave her their negotiable promissory note for that amount due on the 12th day of March, 1903, with interest from date at six per cent per annum, payable semiannually. To secure the payment of the note, defendants, on the same day, executed, acknowledged and delivered to plaintiff a chattel mortgage on a stock of groceries, store fixtures, horse and wagon, owned by them in Kansas City and two days later, plaintiff filed the mortgage in the office of the recorder of deeds of Jackson county. It was released of record March 26, 1903, by Anna Koffler, who had possession of the note and mortgage at that time. In March or April, 1902, plaintiff turned her valuable papers, including this note and mortgage over to her mother for safe keeping. She gave her mother no authority to collect either principal or interest and at different times, when interest matured, asked her brother for payment but was put off by him with promises that he would pay when his pecuniary situation improved. In March, 1903, plaintiff, who was a widow, intermarried with Roy Brown in opposition to the wishes of her mother who shortly after this event released the mortgage of record and then delivered the note and mortgage to defendant, John. Sometime after their marriage, plaintiff and her husband went to New Mexico, where they remained until the spring of 1904, when they returned to Kansas City. Plaintiff first received information of what her mother had done with her note and mortgage after her return to Kansas City. The note, when produced at the trial, bore the endorsement "Pay to the order of Anna Koffler" with the name of plaintiff written underneath, but plaintiff denounces this endorsement as a forgery. She has not received payment of any part of the note, either principal or interest, and did not authorize her mother to release the mortgage, to surrender the papers to defendants, or to do anything with them except to keep them safely.
Defendant John testified that his mother gave him the note and mortgage in payment of groceries and money he had given her during the preceding five years. In this statement he was corroborated by his mother who explains her action in giving her daughter's note in payment of her own debt by saying that plaintiff owed her more than the amount of the note for a boarding house she sold plaintiff and for caring for plaintiff during sickness. Mother and son both declare that plaintiff endorsed the note at the time she delivered it to the mother. The testimony of both relative to the alleged payment of the note is so vague, indefinite and improbable that we would have sustained the trial judge had he rejected it entirely as being too weak to raise an issue of fact. The mainspring of the mother's conduct is laid bare in her own testimony, from which we quote:
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