Brunke v. Salinger
| Decision Date | 11 June 1928 |
| Docket Number | 16346 |
| Parties | BRUNKE v. SALINGER. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.
“ Not to be officially published.”
Action by August H. Brunke against Harry A. Salinger, doing business as the Berns Furniture Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Ed. E Aleshire, of Kansas City, for appellant.
Winger, Reeder, Barker, Gumbiner & Hazard, Alton Gumbiner, and Frederick E. Whitten, all of Kansas City, for respondent.
This is a suit in replevin. The case was tried before the court without the aid of a jury. The court rendered judgment in favor of defendant in the sum of $200, the assessed value of the property taken, together with $100 damages for the wrongful taking and detention of the same. The court ordered that plaintiff should return the property to defendant or, at the election of defendant, plaintiff should pay him the sum of $200, the assessed value of the property. Defendant afterward voluntarily remitted the sum of $50 from the amount found to be the value of the property and judgment was rendered in favor of defendant accordingly. Plaintiff has appealed.
As plaintiff insists that his declaration directing a judgment in his favor should have been given, it will be necessary to state the facts in their most favorable light to plaintiff. These facts show that one Pugh was a tenant of plaintiff under a written lease; that the subject of the lease was an apartment building located in Kansas City, Missouri; that Pugh purchased various articles of furniture from defendant which he used in part in furnishing the apartments in the building, making of them a rooming house or kitchenette apartments. The articles in controversy were purchased in various lots and at each purchase Pugh gave defendant a chattel mortgage for the lot so purchased. The total amount paid by Pugh for the furniture was $437. At the time the matters in controversy in this suit arose, defendant owned eight chattel mortgages on the furniture in controversy, which were duly recorded.
On August 15, 1925, Pugh was indebted to plaintiff for rent in the sum of $1,750. About that time Pugh entered into an agreement with one Murray to trade his equity in the furniture for an equity in a house belonging to Murray. Murray was to assume the payment of defendant’s mortgages. Murray agreed to consummate the trade providing he could make satisfactory arrangement for the payment of the rent due under the lease. It seems that Pugh turned over the premises and furniture in question to Murray pending the consummation of the trade; however Pugh testified that he did not give Murray "possession" under his contract with Murray. Murray was unable to make satisfactory arrangements with the agent of plaintiff for the payment of the rent and the deal fell through, so the furniture was "turned back" to Pugh. At the time the trade was arranged between Murray and Pugh, there was $137 due upon the mortgages to defendant. It appears that Pugh never attempted to operate the apartment property after he made the agreement with Murray. Pugh testified:
He further testified that his name was on the note secured by the chattel mortgage on the furniture and that all that he was interested in was to see that his notes were paid. The evidence shows that Murray never paid any of the rent to plaintiff; that plaintiff never regarded him as a tenant and that Murray never collected rent from the tenants in the apartments. Pugh testified that Murray "fell down" on the deal and the trade "was never consummated." While a bill of sale was given by Pugh to Murray and Murray deeded his equity in the house to Pugh, no bill of sale was ever given by Murray to Pugh reconveying the property, or any deed given by Pugh to Murray reconveying the house. Murray testified that he did not care for the equity in the house. So it would seem that Pugh and Murray were trading merely chips and whetstones.
Plaintiff’s theory of recovery as disclosed in the petition is that there was $1,700 ($1,750) due plaintiff on account of accrued rent on the premises and that on the first of September, 1925, the tenant (Murray) delivered possession of the building and all of the personal property therein to plaintiff in payment of the rent that had accrued to plaintiff under the lease. In other words, plaintiff became the owner of the furniture. However, plaintiff’s son, A. F. Brunke, hereinafter referred to as Mr. Brunke, who testified for plaintiff, stated that he was handling this property for his father and that he never regarded Murray as a tenant. He testified, however, that Murray turned over the furniture in the building to him for the rent and left the premises the latter part of August, 1925. It is quite apparent, taking the evidence in its most favorable light to the defendant, that Murray never had any title to the furniture and therefore he had no right to turn the furniture over to the witness in payment of the rent. In his deposition the witness testified that he took possession from Pugh whom he supposed to be the owner of the property. However, the evidence shows that the witness did take possession of the property during the latter part of August, 1925.
On September 8, 1925, defendant brought a replevin suit against Pugh for the furniture, alleging in the affidavit that the value of the property was $137. On the morning of September 8, 1925, the constable went to the apartment and interviewed the janitor who was then working for Mr. Brunke. Brunke had instructed the janitor not to let any of the furniture be taken from the apartments. The constable did not take the furniture at that time but returned in the afternoon with Pugh, and the janitor upon request unlocked the doors of the apartments in which the furniture was located. Pugh then went in and pointed out the furniture to the constable and voluntarily surrendered it to him. No one representing plaintiff was there at the time. The furniture was taken by the constable and delivered to defendant at the latter’s place of business. Defendant took possession of the goods and renovated, refinished and reconditioned them so as to make them "like new" and placed them on the display floor at his place of business and offered them for sale. They were then worth upwards of $300. Pugh did not turn over the furniture to the defendant herein without suit, for the reason that defendant thought it would be better to get possession of the furniture by a writ of replevin to avoid trouble with any of the tenants in the apartments who might be using the furniture at the time and who might refuse to deliver the same except in obedience to a writ from a court. Mr. Brunke knew that defendant had taken possession under his mortgages as a summons was left at Brunke’s house in connection with the repossession of the property under the writ. However, no one but Pugh was made a party to the suit.
Prior to defendant’s repossession of the furniture, Pugh told Mr. Brunke that the furniture was encumbered for $137, and endeavored to work out a deal whereby Brunke would take over the property and assume the mortgages and release Pugh from the mortgage notes, but Brunke refused to enter into any such agreement. Thereafter the agreement between Pugh and Murray was made in which Murray was to assume the payment of the mortgages. The furniture remained in defendant’s store until some time in September, 1925, when this suit in replevin was instituted and the furniture was taken out of the possession of the defendant and placed in the possession of plaintiff. Prior to the filing of this suit, Brunke attempted to negotiate for the purchase of the furniture from defendant, claiming that he could not dispose of the place, which we assume to mean that he could not lease the rooming house without the furniture in question. But he and the defendant were unable to agree upon the purchase price. The affidavit made by Brunke in suing out the writ was such as to prevent defendant from regaining possession of the furniture until the time of the trial, which was on April 12, 1927, and, presumably, it now remains in his possession. The rental value of the furniture was shown to be $15 per month.
Plaintiff claims that the court should have found in his favor because defendant never foreclosed the mortgage and that, in any event, he was in the wrongful possession of the property because it was illegally taken out of plaintiff’s possession that the manner in which it was taken from plaintiff was The evidence...
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