Cummings v. Badger Lumber Co.
| Decision Date | 06 April 1908 |
| Citation | 109 S.W. 68,130 Mo.App. 557 |
| Parties | DAVID B. CUMMINGS, Respondent v. BADGER LUMBER COMPANY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.
REVERSED AND REMANDED (with directions).
Botsford Deatherage & Young, for appellants, filed argument.
Meservey & German and Cameron L. Orr for respondent.
(1) Where there is no agreement to the contrary, the mortgagee is entitled to the possession of the property on the execution of the mortgage; but where there is an agreement that possession shall remain with the mortgagor until certain conditions are broken, such agreement must control and the right of possession will not accrue until one or more of these shall be broken. Drug Co. v. Self, 77 Mo.App 284; Kerbs v. Zumwalt, 86 Mo.App. 133; Burke v Metcalf, 29 Mo.App. 391. (2) Until a mortgagor loses his right to possession under the terms of the mortgage, he has a right of action against the mortgagee for disturbing his possession, and can maintain replevin against the mortgagee, who has taken possession of the mortgaged goods, before condition broken. Jones v. Smith, 123 Ind. 585; 24 N.E. 368; Niven v. Burke, 82 Ind. 455; Brashier v. Tolleth, 31 Neb. 622, 48 N.W. 398; Newsam v. Finch, 25 Barb. (N.Y.) 175; Jones v. Ennis, 47 Kan. 487; 28 P. 156; Cobbey on Chattel Mtg., sec. 180; Ennis v. Snell, 143 Mass. 165; 82 Ind. 455; Edwin v. Jacobson, 47 Ill.App. 93; Moffit v. Shields, 67 Mich. 610; Wells v. Bannister, 36 Vt. 225; 24 Am. & Eng. Enc. Law, p. 488. (3) Where the mortgage instrument contains no power of sale, and no conditions whereby the mortgagee may take possession, the mortgagee cannot take possession and sell the mortgaged property. He must proceed in equity to foreclose his security. R. S. 1899, sec. 4342; Davis v. Childers, 45 S.C. 133, 22 N.E. 784, 55 Am. St. 757; McCormick v. Hartley, 107 Ind. 248, 6 N.E. 357; Pope v. Jenkins, 30 Mo. 528; Book v. Beasly, 138 Mo. 460; Reilly v. Cullen, 101 Mo.App. 32; Cowles v. Marble, 37 Mich. 158. (4) The conditions of a chattel mortgage or deed of trust are solely creatures of contract, and in the absence of conditions in a chattel mortgage or deed of trust giving the mortgagee right to take possession, the mortgagee can only foreclose his lien under the statute. He cannot seize the property and sell to satisfy his lien, nor can he take any action save and except such as given him under the terms of his mortgage. R. S. 1899, sec. 4342; Book v. Beasly, 138 Mo. 460; Kerbs v. Zumwalt, 86 Mo.App. 133; Davis v. Childers, 45 S.C. 133, 22 S.E. 784, 55 Am. St. 757; McCormick v. Hartley, 107 Ind. 248, 6 N.E. 357; Stewart v. Brown, 112 Mo. 175; Schonewerk v. Hebrecht, 117 Mo. 26; Kelsey v. Bank, 166 Mo. 171; Reilly v. Cullen, 101 Mo.App. 32; Cowles v. Marble, 37 Mich. 158; Kerbs v. Zumwalt, 86 Mo.App. 128; Pope v. Jenkins, 30 Mo. 528; Lipscomb v. Insurance Co., 138 Mo. 24; Hannah v. Davis, 112 Mo. 608. (5) There was an extension of time to a definite period for the payment of this indebtedness. Feller v. McKillip, 109 Mo.App. 61; Weltner v. Riggs, 3 W.Va. 445. (6) The damages allowed plaintiff by the referee and trial court, amounting to $ 173 are grossly inadequate. The measure of damages for the unlawful taking and detention of personal property is the value of the use of such property during the time it was so held. Anchor Milling Co. v. Walsh, 24 Mo.App. 97; Jennings v. Sparkman, 48 Mo.App. 252; Baird v. Taylor, 30 Mo.App. 582; Ladd v. Brewer, 17 Kan. 204; Bell v. Campbell, 17 Kan. 211; Yandle v. Kingsbury, 17 Kan. 195; Williams v. Wood, 63 N.W. 492; Logan v. Railroad, 96 Mo.App. 461; Wells on Replevin, sec. 579; Borksdale v. Appleberry, 23 Mo. 392; Wells on Replevin, page 329; Rose v. Pearson, 41 Ala. 692; Feagan v. Pearson, 42 Ala. 335.
--This is a suit in replevin brought by plaintiff for the possession of a certain planing mill, attachments and contents, the said planing mill not being a part of any real estate. The allegations of the petition are that plaintiff is entitled to the possession of the property described and that the same was wrongfully taken by the defendants. Plaintiff executed the necessary bond and obtained under his writ possession of the property.
The answer of defendants is a general denial; and further that in February, 1905, prior to the institution of the suit, which was begun on July 28, 1905, the plaintiff was indebted to defendants in the sum of $ 630.44, at which time, he to secure said indebtedness executed to defendant E. G. Brown for all the defendants, a bill of sale to said property; that said bill of sale was made by the plaintiff and accepted by defendants for the purpose of securing defendants for said indebtedness against plaintiff. The contract which is attached to the petition in terms amounts to an unconditional sale without any clause of defeasance, or any provision that in case of default in the payment of the debt defendants were authorized to take possession of the property.
The plaintiff set up several defenses to said answer, but abandoned all except his general denial. There was an itemized statement of the plaintiff's indebtedness to defendants filed containing more than one hundred items. The court of its own motion referred the case to Franklin Houston a member of the Jackson County Bar. His statement of the evidence and finding covers several hundred pages of the abstract of record.
The referee proceeded to hear the evidence offered by the parties and made report of his proceeding and findings. The referee reported that both parties to the suit by their counsel admitted that the bill of sale although absolute in its terms was given and received as a security, and should be so treated as far as its terms and the parol agreement had at the time permitted as a chattel mortgage given to Brown as manager of the Westport Lumber Company. It was also admitted that plaintiff remained in possession of the property until February 11, 1905, at which time he was adjudged incapable of managing his business and was sent to an asylum where he remained until February 25th when he was discharged and returned to Kansas City.
The referee finds that the assigned accounts of Ward and Riggs to the defendant in the sum of $ 75.15, was no part of the original indebtedness and therefore disallows it. He gives the defendants full credit for the original indebtedness for which the bill of sale was made to secure and credit plaintiff for certain items for mill work and shingles, and for an order on the Standard Scale Company leaving a balance due defendants in the sum of $ 529.74. Subject however to a further reduction for damages sustained by plaintiff for a detention of the property and its injury and for expense of restoring it to the condition it was in when defendants took possession of it, in the sum of $ 125 and interest as damages for the value of its use $ 48 leaving a balance due defendants in the sum of $ 375, for which amount the defendants were entitled to judgment against the plaintiff, he having sold the property since the institution of the suit.
The finding was also that there was a parol agreement entered into at the date of the bill of sale, which provided that plaintiff should retain possession during 1905 and until December or Christmas 1906; and that the giving of the mortgage was a sufficient consideration for an extension of time for the payment of the debt. The result of the finding of the referee was that defendants violated the terms of said parol agreement by taking possession of the property and that the plaintiff was justified in replevying it.
To the report of the referee the defendants filed certain exceptions and at the same time filed a motion for judgment against plaintiff and his surety, on the replevin bond. The exceptions and motion were overruled. The plaintiff also filed certain exceptions to the report, ten in number. Exceptions two and five and six were sustained and the cause was rereferred. Number 2 relates to the question of admissions made by the defendants. Numbers five and six relate to the holding of the referee that defendants were entitled to an accounting and a judgment for the balance of the debt after the allowance of certain credits.
The cause was rereferred and the referee without taking any additional evidence made his second report, in which he found that the plaintiff was entitled to the possession of the property and damages for its detention in the sum of $ 173 and recommended that he have judgment accordingly. The defendants filed exceptions to this report which were overruled; and the court affirmed the report of the referee and rendered judgment accordingly, from which defendants appealed.
The abstract of the record contains 603 pages. The reports of the referee and the exceptions of counsel alone would make a large book. Should we attempt to notice in detail all that was said and done in the case, it would avail no useful purpose; we will therefore endeavor to examine and discuss the material points raised on the record without reference to the manner in which they were presented in the trial court. They are two main features in the case which when properly understood will practically determine the rights of the parties.
First what effect is to be given to the written bill of sale upon which defendants rely? Second, Was there an extension of the time of the payment of plaintiff's indebtedness, and if so its effect upon the rights of the parties to the suit.
It is conceded that the bill of sale in question was intended as a mortgage and not an absolute conveyance of the property. It not being recorded and no possession taken of the property mortgaged, rendered it void as to...
To continue reading
Request your trial