Conroys, Inc. v. Brooks

• Decision Date: 07 June 1932
• Docket Number: No. 21613.,21613.
• Citation: 50 S.W.2d 708
• Parties: CONROYS, Inc., v. BROOKS et al.
• Court: Missouri Court of Appeals

50 S.W.2d 708

CONROYS, Inc., v. BROOKS et al.

No. 21613.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Conroys, Inc., against Elmore Brooks and another, wherein defendants filed a counterclaim. Verdict in favor of plaintiff on its cause of action. From a judgment for defendants on their counterclaim, plaintiff appeals.

Reversed and remanded, with directions.

E. H. Schwarzenbach, of St. Louis, for appellant.

Homer G. Phillips and Jesse L. England, both of St. Louis, for respondents.

HAID, P. J.

This is an appeal by the plaintiff from a judgment on a counterclaim filed by the defendants.

The action was one in replevin filed by plaintiff for the possession of a Welte Mignon reproducing grand autopiano No. 58437, a bench, and twelve rolls of music. The plaintiff's right to possession was based upon the provisions of a chattel mortgage executed by defendants securing a promissory note covering the balance of the purchase price. At the close of the entire case, the court directed a verdict in favor of the plaintiff on its cause of action.

The piano was described in both the chattel mortgage and contract of sale as above mentioned.

The purchase price of the piano was $2,250, the defendants were allowed $600 for their piano which was taken in exchange, $18 of the difference being paid at the date of the purchase and $7 at the time of delivery of the described piano, and the balance of the purchase price was to be paid in weekly installments of $10 each, with interest on deferred payments. Defendants made default in the installment due February 3, 1928, and subsequent installments.

The defendants filed an amended answer and counterclaim admitting that on December 22, 1927, they made and executed the chattel mortgage and note for the piano described as heretofore set out; that such piano was delivered to defendants on December 24, 1927; that the piano so delivered was not the piano selected by defendants, but was one substituted for the new and unused piano selected by them; that the piano exhibited to and shown defendants was a new and unused piano, and was so represented by plaintiff to defendants, but that the piano delivered to the defendants was used, shopworn, mechanically impaired by use, checked, cracked, and marred as to the paint and varnish thereof, etc., and that said piano was not the subject of the purchase made by defendants with plaintiff; that upon discovery of the substitution defendants immediately demanded that plaintiff return the piano taken in exchange, together with the $25 paid at the time of the purchase, but that plaintiff failed and refused, and still fails and refuses, to do so. Wherefore they prayed that plaintiff be denied judgment on its petition, and that defendants have judgment against the plaintiff on their counterclaim in the sum of $625, as for money had and received, being the agreed value of the piano turned over by defendants to plaintiff and the amount paid on account of the aforesaid contract so rescinded by the defendants.

The reply was a general denial.

The evidence showed that Mrs. Brooks made several visits to plaintiff's store, after which, on December 22, 1927, she executed the contract for the purchase of the piano heretofore described; that on the same day she executed a note and chattel mortgage for the sum of $1,650, $18 of which was paid in cash and $7 of which was to be paid upon delivery of the piano, and the balance to be paid in weekly installments of $10 each beginning February 3, 1928. The piano was delivered to defendants on the evening of December 24, 1927, and thereafter on the same evening Mr. Brooks executed the note and chattel mortgage. The mortgage contained, among other things, a provision that, in case default be made in the payment of said note or interest or any installments thereof when same should become due and payable, the balance of both principal and interest should immediately become due and payable, and the mortgagor was authorized to take possession of the property.

As already stated, at the close of the whole case the court directed a verdict in favor of plaintiff on its cause of action.

In behalf of plaintiff, compliance with the contract was shown; that upon demand, after default, defendants refused to surrender the mortgaged piano and informed plaintiff to "replevin the piano and to send out the Sheriff."

In support of the counterclaim, Mrs. Brooks testified that at the time of delivery of the piano she noticed that it was not the one she had selected, so told the moving men, but did not ask them to take it back. Later that evening Mr. Brooks and Mr. Conroy met at her home, and Mr. Brooks signed the note and chattel mortgage; that she had talked to Mr. Conroy before Mr. Brooks arrived, knew it was not the piano she bought, and knew that Mr. Brooks was to sign the note and chattel mortgage, but did not at any time request Mr. Brooks not to sign the papers; that, before she signed the contract note...