Citizens' Bank of Sikeston v. Scott County Milling Co.

• Decision Date: 09 July 1922
• Docket Number: No. 3038.,3038.
• Citation: 210 Mo. App. 603,243 S.W. 433
• Parties: CITIZENS' BANK OF SIKESTON v. SCOTT COUNTY MILLING CO.
• Court: Missouri Court of Appeals

243 S.W. 433

210 Mo. App. 603

CITIZENS' BANK OF SIKESTON v. SCOTT COUNTY MILLING CO.

No. 3038.

Springfield Court of Appeals. Missouri.

July 9, 1922.

Rehearing Denied August 9, 1922.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by the Citizens' Bank of Sikeston against the Scott County Milling Company. From judgment for plaintiff, defendant appeals. Affirmed.

R. E. Bailey, of Sikeston, and Ward & Reeves, of Caruthersville, for appellant.

Ray B. Lucas, of Benton, and Harry C. Blanton, of Sikeston, for respondent.

COX, P. J. Action for conversion. Verdict and judgment for plaintiff, and defendant has appealed.

Plaintiff is a bank doing business at Sikeston. Defendant is in the milling and warehouse business at Sikeston and other points. B. C. Collier, a farmer, was indebted to plaintiff on a demand note in the sum of $2,275, and was indebted to defendant in the sum of $946.17. Plaintiff held a chattel mortgage on a crop of corn and some other property of Collier's to secure its debt, while defendant had no security for its debt. When the corn was gathered, Collier stored it with defendant, and received warehouse receipts therefor. He delivered these receipts to plaintiff, with instructions to sell the corn at any time they thought the price the best, and apply the proceeds on his note. The corn was held for some time, and on January 25, 1921, plaintiff, desiring to realize on the corn, sent its agent to defendant with a view to secure a settlement and to collect the value of the corn. The warehouse receipts for the corn were left with the defendant, and a day or so later the defendant delivered to plaintiff two "settlement sheets," which showed the amount of the corn and its value, and also the amount of Collier's indebtedness to defendant, which was subtracted from the value of the corn, and checks were then made out for the balance, and delivered to plaintiff with these "settlement sheets." Plaintiff looked these statements over, and returned the checks to defendant with the statement that it held a chattel mortgage on the corn, and could not allow the credits claimed by defendant for the amount of Collier's debt to it. After consulting an attorney, and being advised acceptance of there checks would not prejudice their rights to insist upon the remainder, the checks we "e accepted. The plaintiff then demanded pay for the remainder of the corn which defendant had retained to pay Collier's debt to it. The defendant at first refused to admit that plaintiff could take the corn under its mortgage at that time, for the reason, as it contended, that, as the mortgage covered other property, they must foreclose as to that before they could appropriate the corn held by defendant. Defendant's testimony shows that it abandoned that claim in two or three days, and at that time defendant claims an agreement was made with plaintiff by which defendant was to assist Collier to raise enough money to pay off one-half of the amount due on plaintiff's note, and, on that being done, defendant would be released from liability to plaintiff, and could retain the corn; that, in pursuance to that agreement, the defendant did assist Collier to raise some money by spending some time trying to help him to raise it, and by buying a corn sheller from Collier for $175, and some peas which Collier testified were sold at $1.40 per bushel, the market price, while defendant claims it paid $1.50, which was more than the market price. Plaintiff's witnesses denied that such a contract was made.

Defendant asked a peremptory instruction to find for it on the ground that the evidence failed to show a conversion of the corn. This was refused. Defendant's contention on this point is based on two facts: First, that plaintiff's witnesses, who had transacted the business for it, testified that the corn was sold to defendant, and, if it was sold, then plaintiff could only sue for the purchase price, and could not sue for conversion. Second, that demand for possession of the corn was not made by plaintiff before the suit was filed, and for that reason a suit for conversion could not be maintained.

On the question of a sale, it is true that plaintiff's witnesses used language which, standing alone, would show a sale, yet, when all the testimony is considered together, we do not think it can be construed to show a sale of that part of the corn which defendant insisted on retaining to pay the debt of Collier to it. It did buy and pay for the excess of the corn, but did not buy or pay for the corn of the value of $946.17, which was the amount of Collier's debt to it. There could not be a sale by plaintiff to defendant without defendant agreeing to pay ...