Cook v. Smith

• Decision Date: 25 June 1918
• Citation: 204 S.W. 919,200 Mo.App. 218
• Parties: CHAS E. COOK, Appellant, v. W. C. SMITH, Respondent
• Court: Missouri Court of Appeals

204 S.W. 919

200 Mo.App. 218

CHAS E. COOK, Appellant, v. W. C. SMITH, Respondent

Court of Appeals of Missouri, Springfield

June 25, 1918

Appeal from Greene Circuit Court.--Hon. Arch A. Johnson, Judge.

AFFIRMED.

Judgment affirmed.

Hamlin & Hamlin for appellant.

Talma S. Heffernan and Watson & Page for respondent.

FARRINGTNON J. Sturgis, P. J., concurs. Bradley, J., dissents.

OPINION

FARRINGTNON, J.

The circuit court rendered a judgment in favor of the defendant and dismissed plaintiff's suit, and plaintiff has appealed.

The trial court made the following finding of facts (which it does not appear from the record was requested by either party):

"The court finds the facts to be that Cook was the owner of the property in controversy on the day of , 191-, and on that day executed a chattel mortgage to the Crighton Provision Company to secure indebtedness owing by plaintiff to the Crighton Provision Company; that thereafter Cook leased the property in dispute to Branson; that afterwards Branson abandoned the property and the Crighton Provision Company took possession of the property in controversy under the chattel mortgage given it by Cook before referred to; that after the Crighton Provision Company took possession of the property the defendant Smith demanded of the Crighton Provision Company possession of the property claiming to have a prior mortgage thereon; that under said demand the Crighton Provision Company delivered to him one ice box of the value of $ 200, two meat blocks of the value of $ 15, and other articles to the value of $ 10, making a total of $ 225; that in truth and in fact Smith had no mortgage on the property or any claim whatever to it but that said property was Cook's, subject only to the mortgage held by the Crighton Provision Company; that the Crighton Provision Company, upon turning over possession of said property to Smith, made no charge against Smith for the same and that Smith took the same and sold it and rendered no account thereof either to the Crighton Provision Company or to any one else but received the purchase price for himself and that the Crighton Provision Company has not now nor at any time heretofore made any demand or claim and is making no claim on Smith for the proceeds of the sale or for the return of the property and is making no claim for the property. I further find that the Crighton Provision Company sold part of the property taken under its mortgage and applied the sale price thereof to Cook's indebtedness and that they still have some of the property taken under the mortgage in its possession; that it never at any time foreclosed the mortgage and, as the matter now stands, a balance is due still on the note of Cook to Crighton Provision Company and no final settlement of the matter has been made. On this finding of facts, I find that under the law the plaintiff cannot recover."

In addition and supplemental to this we find from the record that the following facts are undisputed and appear in the testimony offered by plaintiff: The plaintiff was the owner of a butcher shop, fixtures, tools and equipment, on which he gave a chattel mortgage to the defendant, W. C. Smith. After giving this mortgage to Smith, he gave a second chattel mortgage to the Crighton Provision Company covering the same property, and, its debt having become due, at the instance of the plaintiff the property was taken in charge by the Crighton Provision Company under its second mortgage and was being held by it by virtue thereof. During this time, Smith, the defendant, with his first mortgage, demanded the possession of the property of the Crighton Provision Company, and possession was surrendered to him. One of the witnesses offered by plaintiff, the agent of the Crighton Provision Company, testified: "I just simply surrendered it because we understood he had a prior claim to it. In fact we understood when we took our second mortgage, and we gave possession under the first mortgage." It is further shown that at the time Smith took the property out of the possession of the Crighton company there remained due that company from the plaintiff from thirty to forty dollars, and the plaintiff testified that at the time of the trial the Crighton company had not been paid the full amount of its debt.

There can be no doubt under this testimony but what the property which the plaintiff now seeks to recover in this action of conversion was in the possession of the second mortgagee, the debt secured by the second mortgage having matured and being unpaid at the time the defendant took the property from the possession of the Crighton company under his mortgage which that company recognized at that time and had recognized from the time it took its mortgage was a superior lien to its second mortgage.

It developed that Cook brought an action against Smith and had the first chattel mortgage declared fraudulent and void, but there is an utter failure of proof to show that the Crighton company had any notice or knowledge whatever of Smith's mortgage being in any way irregular or invalid.

At the time Smith demanded and secured the property from the Crighton company under his mortgage the Crighton company was the only one that had possession of the property or had a right to the immediate possession thereof, the debt of the plaintiff to the Crighton company being due and a portion of it yet unpaid.

The question raised at the beginning of the trial, pressed throughout, and raised in this court, is that the plaintiff failed to make a case of conversion, the reason assigned being that he as the plaintiff did not have the possession of the property nor was he entitled to the immediate possession thereof at the time of the alleged conversion by Smith.

The law seems to be settled that in order for a plaintiff to maintain the action of trover or conversion he or those under whom he claims must have been in the possession of the property, either actual or constructive, or, if not that he must have been entitled to the immediate possession thereof, and that a failure to show one or the other of these conditions defeats his action. This question is discussed in 2 Cooley on Torts (3 Ed.), pp. 848, 849, under the title "Who may bring trover." The reason as stated in that text is that a defendant may not be subsequently compelled to pay to some third party, a stranger to the first suit, damages for conversion. In the case of Summers v. Baker, 158 Mo.App. 666, l. c. 672, 139 S.W. 226, the court held that the mortgagor could not maintain trover where the property was in the possession of a mortgagee who was holding under the mortgage after condition broken; but in that case, because of the fact that the mortgage under which such mortgagee was holding was void the mortgagor was entitled to the immediate possession of the goods and could maintain the action. In other words, if we apply that principle to the present case, were it shown that the Crighton Provision Company's mortgage was invalid, it having possession under such invalid mortgage, then the mortgagor, the plaintiff herein, could maintain trover because as against the Crighton Provision Company...